Sentencing offenders with self-induced mental disorders: towards a theory of meta-culpability

Abstract

Around Australia, the Verdins principles govern the sentencing of offenders with mental health problems. The first Verdins principle holds that mental health problems may reduce an offender’s culpability, and thus the punishment that is considered just in the circumstances. But how should this principle be applied where the offender’s mental health condition was triggered by drug use, or by a failure to take prescribed psychiatric medication? Should the offender be precluded from relying on the principle because of the self-induced nature of their condition, or should they continue to receive a sentencing reduction because their mental functioning was impaired at the time of the offence? This article analyses the way in which Australian courts have addressed this issue to date, highlighting key problems with the current approach. It uses Duff’s account of crime and punishment to sketch out an alternative approach that focuses on the offender’s ‘meta-culpability’: their culpability for the reduced level of culpability ordinarily associated with impaired mental functioning. It concludes by demonstrating how that approach would work in practice, by applying it to the facts of a recent Victorian criminal case.

Keywords: communicative retributivism; culpability; drug-induced mental health problems; medication non-adherence; mental disorder; mental health; mental illness; punishment theory; sentencing; Verdins principles.

Acknowledgments

This article is based on a paper presented at the RANZCP – Faculty of Forensic Psychiatry (Victoria) and the ANZAPPL (Victoria) conference on Rethinking Criminal Responsibility: Emerging Perspectives in Mental Health. I am grateful to the organisers for organising this event and putting together this special edition of the journal. I am also grateful to Kate Seear who commented on an earlier draft of this article, and to the anonymous referees for their comments.

Ethical standards

Declaration of conflicts of interest

Jamie Walvisch has declared no conflicts of interest.

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.

Notes

1 Veen v The Queen [No 2] (1988) 164 CLR 465, [8]. The principle has been given statutory recognition in most Australian jurisdictions, although some statutes allow for the exceptional imposition of disproportionate sentences: see Mirko Bagaric, Sentencing in Australia (8th edn, Thomson Reuters 2021) 200–1.

2 See, e.g. Sentencing Act 1991 (Vic) s 5(2)(d). For a useful overview of various theories of proportionality, and the role of culpability, see Andrew Von Hirsch, ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much”?’ (1990) 1 Crim Law Forum 259.

3 R v Verdins (2007) 16 VR 269, 276 (‘Verdins’). While the Court in Verdins collated and refined the legal principles in this area, Australian courts have mitigated sentences on this basis since the 1950s: see Jamie Walvisch, Andrew Carroll and Tim Marsh, ‘Sentencing and Mental Disorder: The Evolution of the Verdins Principles, Strategic Interdisciplinary Advocacy and Evidence-Based Reform’ (2021) Psychiatr Psychol Law.

4 In Verdins, the Court also set out five other ways in which an offender’s mental health condition may affect the sentencing determination, such as by moderating or eliminating the need for general or specific deterrence. These ‘Verdins principles’ have been adopted in all Australian jurisdictions: Jamie Walvisch and Andrew Carroll, ‘Sentencing Offenders with Personality Disorders: A Critical Analysis of DPP v O’Neill’ (2017) 41 Melbourne University Law Review 417, 419. The focus of this article is solely on Verdins principle 1.

5 Verdins (n 3) [25]–[26].

6 ibid [26].

7 See, e.g. Department of Prime Minister and Cabinet, National Ice Strategy 2015 (Council of Australian Governments 2015) 8.

8 For example, one Australian study of adult methamphetamine users who took the drug at least monthly reported that 23% had experienced a clinically significant psychotic symptom in the past year; and that the prevalence of psychosis amongst the methamphetamine users was 11 times higher than amongst the general Australian population: Rebecca McKetin et al, ‘The Prevalence of Psychotic Symptoms Among Methamphetamine Users’ (2006) 101 Addiction 1473. Similarly high rates of psychotic symptoms have been found in other Australian and international studies: see, e.g. Shane Darke and others, ‘Major Physical and Psychological Harms of Methamphetamine Use’ (2008) 27 Drug Alcohol Rev 253.

9 See, e.g. DPP v Gargasoulas [2019] VSC 87. On the relationship between drugs, psychosis and offending, see Cameron Wallace, Paul E Mullen and Philip Burgess, ‘Criminal Offending in Schizophrenia over a 25-year Period Sparked by Deinstitutionalization and Increasing Prevalence of Comorbid Substance Use Disorders’ (2004) 161 Am J Psychiatr 716; Seena Fazel et al, ‘Schizophrenia and Violence: Systematic Review and Meta-Analysis’ (2009) 301 J Am Med Assoc 2016. It should be noted that not all methamphetamine-related offending will be mediated by psychosis: much of this offending will occur due to the ordinary effects of methamphetamine usage. Such offending is not the focus of this article, which solely considers mental disorder-mediated offending.

10 ‘Medication non-adherence’ occurs when a person’s behaviour in taking medication does not correspond with agreed recommendations from a health care provider: World Health Organization, Adherence to Long-Term Therapies; Evidence for Action (World Health Organization 2003) 3. A recent meta-analysis of 35 studies found that 49% of major psychiatric disorder patients were non-adherent to their psychotropic medication: Agumasie Semahegn and others, ‘Psychotropic Medication Non-Adherence and its Associated Factors Among Patients with Major Psychiatric Disorders: A Systematic Review and Meta-Analysis’ (2020) 9 Syst Rev 17.

11 See, e.g. DPP v Boyles (a pseudonym) [2016] VSCA 267 (‘Boyles’).

12 Aristotle, Nichomachean Ethics (Penguin 1955) 92.

13 See, e.g. Richard Sherlock, ‘Compliance and Responsibility: New Issues for the Insanity Defense’ (1984) (Winter) J Psychiat Law 483; Michael D Slodov, ‘Criminal Responsibility and the Noncompliant Psychiatric Offender: Risking Madness’ (1990) 40 Case West Reserve Law Rev 271; Edward W Mitchell, Self-Made Madness: Rethinking Illness and Criminal Responsibility (Routledge 2003); Zachary D Torry and Kenneth J Weiss, ‘Medication Noncompliance and Criminal Responsibility: Is the Insanity Defence Legitimate?’ (2012) 40 J Psychiat Law 219.

14 Mitchell (n 13) 13–14. For a critique of the medical model of psychiatric illness, see Jamie Walvisch, ‘Defining “Mental Disorder” in Legal Contexts’ (2017) 52 Int J Law Psychiatr 7.

15 Edward W Mitchell, ‘Madness and Meta-responsibility: The Culpable Causation of Mental Disorder and the Insanity Defence’ (1999) 10 J Forensic Psychiatr 597, 598. See also Mitchell, Self-Made Madness (n 13).

16 While the requirements for the ‘insanity’ defence vary between jurisdictions, it will generally be established by proving that, at the time they committed the relevant act, the accused was suffering from a ‘disease of the mind’ that caused them either to not understand the nature and quality of their conduct, or to not know that that conduct was wrong: see, e.g. R v M’Naghten (1843) 8 ER 718; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20; Criminal Code (Can), RSC 1985, c C-46, s 16. In some jurisdictions it can also be established by proving that the accused could not control their behaviour: see, e.g. Criminal Code 1995 (Qld) s 52; Criminal Code Act 1924 (Tas) s16. For a detailed survey of the law in various jurisdictions, see Law Commission, Insanity and Automatism: Supplementary Material to the Scoping Paper (Law Commission 2012) Appendix C.

17 There is not universal agreement about the meaning of the terms ‘responsibility’ and ‘culpability’. In this article I use the term ‘responsibility’ to refer to the binary concept of whether a person is found guilty or not guilty of an offence, and the term ‘culpability’ to refer to the blameworthiness of a person who has been found guilty. For a useful discussion of the complex relationship between responsibility and culpability, see J Peay, ‘Responsibility, Culpability and the Sentencing of Mentally Disordered Offenders: Objectives in Conflict’, [2016] Crim Law Rev 152.

18 Duff has developed his theory of crime and punishment in many books and articles over the past 35 years. The most detailed articulation of his account can be found in RA Duff, Trials and Punishment (Cambridge University Press 1986); RA Duff, Punishment, Communication, and Community (Oxford University Press 2001); RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford University Press 2007).

19 This section focuses solely on the general application of the Verdins principles to cases involving self-induced mental health conditions. It does not consider any State-based legislation that may affect the operation of these principles in specific circumstances.

20 DPP v Byast [2020] VCC 2051 (‘Byast’).

21 An offender who is precluded from relying on VP1 may still be able to rely on the other Verdins principles. For example, mitigation may remain appropriate due to the disproportionate burden prison is likely to impose on the offender (Verdins principle 5).

22 DPP v Arvanitidis [2008] VSCA 189, [34] (‘Arvanitidis’); Vergados v The Queen [2011] VSCA 438, [46] (‘Vergados’).

23 The burden is on the defence to prove this lack of awareness on the balance of probabilities: Arvanitidis (n 22) [34]. The qualification here relates to the possibility that there is an objective aspect to this principle: see ‘The Need for Clarification’ below.

24 ibid [34]; Sanyasi v The Queen (2019) 90 MVR 99.

25 R v Martin [2007] VSCA 291 (‘Martin’); R v Gagalowicz [2005] NSWCCA 452, [36].

26 Martin (n 25) [53]; Arvanitidis (n 22) [43]. The burden is on the prosecution to prove, beyond reasonable doubt, that the offender had this level of foresight.

27 See, e.g. Martin (n 25).

28 See, e.g. Eken v The Queen [2007] NSWCCA 320, [47] (‘Eken’); R v Monks (2019) 133 SASR 182 (‘Monks’); Arvanitidis (n 22) [44].

29 See, e.g. R v Rees [2011] VSC 523; R v Gibson [2016] VSC 634; R v Wardlaw [2020] VSC 83.

30 See, e.g. R v Eckersley [2020] VSC 22.

31 See, e.g. Marks v The Queen [2019] VSCA 253 (‘Marks’).

32 See, e.g. R v Dupuy [2008] VSCA 63 [31].

33 See, e.g. Abdulfatah v The Queen [2019] VSCA 262 (‘Abdulfatah’); Vergados (n 22) [47].

34 Monks (n 28) [40].

35 See, e.g. R v Sebalj [2006] VSCA 106.

36 See, e.g. Wright v The Queen [2015] VSCA 333 (‘Wright’).

37 See, e.g. Monks (n 28) [41]; Wright (n 36) [48].

38 See, e.g. Monks (n 28) [41]. This reflects general sentencing principles concerning drug addiction: see, e.g. R v McKee (2003) 138 A Crim R 88; R v Lacey [2007] VSCA 196.

39 See, e.g. R v Park [2017] ACTSC 26 (‘Park’) [24]; Damiani v Western Australia [2006] WASCA 47, [42].

40 See, e.g. Johnston v The Queen [2013] VSCA 362, [15] (‘Johnston’); R v Shafik-Eid [2009] VSCA 217, [27]; Sadiq v The Queen [2017] VSCA 64, [21]; McNamara v Western Australia [2013] WASCA 63, [64] (‘McNamara’); R v Sturt [2020] VSC 317, [38]–[40] (‘Sturt’).

41 See, e.g. McNamara (n 40) [64].

42 See, e.g. Sturt (n 40) [38]–[40].

43 Johnston (n 40) [16].

44 See, e.g. Boyles (n 11); R v Costa [2017] VSC 208 (‘Costa’); R v Elcheikh [2019] ACTSC 359.

45 See, e.g. Wright (n 35). While the courts have indicated that this may be an aggravating factor, there are no reported cases in which the offender’s failure to take their medication has been the sole basis of aggravation. In all of the cases where the offender’s medication non-adherence has been considered aggravating, the offender’s drug use has also contributed to their mental health condition.

46 See, e.g. Abdulfatah (n 33); R v Phan [2019] VSC 153.

47 See, e.g. R v McKnight [No 4] [2014] NSWSC 1029.

48 See, e.g. Abdulfatah (n 33).

49 See, e.g. R v Martin [2005] VSC 497, [23]; Boyles (n 11) [42].

50 See, e.g. Wright (n 36) [39]-[45]; Costa (n 44) [42].

51 See, e.g. Eken (n 28) [41]; McNamara (n 40) [119].

52 Arvanitidis (n 22) [26].

53 DPP v Kao [2009] VSCA 273, [42]. The Court did not explain what these policy reasons were.

54 Boyles (n 11) [42]–[43]. See also McNamara (n 40) [64].

55 See Butler v Western Australia [2010] WASCA 104, [8].

56 Martin (n 25) [20].

57 See, e.g. Johnston (n 40) [15].

58 See, e.g. Mune v The Queen [2011] VSCA 231, [32]; R v Fang [No 4] [2017] NSWSC 323, [76].

59 Monks (n 28) [64]. See also Martin (n 25) [23].

60 One possible exception is R v MT [2020] ACTSC 339. In that case, the offender became psychotic after taking LSD. While the court held that he had no awareness of the possibility that this would occur, and thus his drug use was not aggravating, it also held that his psychosis was not a mitigating factor. It is not clear if this was because the offender was found to be subjectively aware of the possible effects of LSD on his cognitive abilities, or because the court considered that he should have been aware of this possibility (given he took a mind-altering drug): at [20]–[22].

61 Duff, Trials and Punishment (n 18) 6. While Duff’s account, and the criminal justice system more generally, presumes that people are generally rational and autonomous moral agents, it is important to acknowledge the limitations of this perspective. People do not always act rationally, and their behaviour may be constrained by various social, environmental, historical, genetic and psychological factors. Where it is possible, this complexity should be taken into account within the bounds of the broadly Kantian framework.

62 Duff’s most detailed articulation of these issues can be found in the following books: ibid; Duff, Punishment, Communication, and Community (n 18); Duff, Answering for Crime (n 18).

63 RA Duff, ‘Retrieving Retributivism’ in Mark D White (ed), Retributivism: Essays on Theory and Policy (Oxford University Press 2011) 3, 6.

64 Matt Matravers, ‘Duff on Hard Treatment’ in Rowan Cruft, Matthew H Kramer and Mark R Reiff (eds), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford University Press 2011) 68–83, 68.

65 Nicola Lacey, ‘Community, Culture, and Criminalization’ in Rowan Cruft, Matthew H Kramer and Mark R Reiff (eds), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford University Press 2011) 292, 292.

66 Matravers (n 64) 82.

67 These include Andrew Ashworth, John Gardner, Nicola Lacey, Matthew Matravers, Jeffrie Murphy, John Tasioulas and Andreas Von Hirsch: see Rowan Cruft, Matthew H Kramer and Mark R Reiff (eds), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford University Press 2011).

68 Raimond Gaita, ‘Literature, Genocide, and the Philosophy of International Law’ in Rowan Cruft, Matthew H Kramer and Mark R Reiff (eds), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford University Press 2011) 122, 122.

69 See, e.g. RA Duff, ‘Towards a Modest Legal Moralism’ (2014) 8 Crim Law Philos 217; RA Duff, ‘A Criminal Law for Citizens’ (2010) 14 Theor Criminol 293. On Pettit and Dagger’s views of republicanism, see Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press 1999); R Dagger, Civic Virtues: Rights, Citizenship, and Republican Liberalism (Oxford University Press 1997).

70 Duff, ‘A Criminal Law for Citizens’ (n 69) 300.

71 RA Duff, ‘Towards a Theory of Criminal Law?’ (2010) 84 Proc Aristotelian Soc Suppl Vol 1, 5.

72 Duff, ‘Retrieving Retributivism’ (n 63). On the concept of ‘equal concern and respect’, see Ronald Dworkin, A Matter of Principle (Harvard University Press 1985) ch 8.

73 Duff, Punishment, Communication, and Community (n 18) 48.

74 Under Duff’s account, the role of the state is not to enforce one substantive conception of the good, but to respect and foster individual autonomy and freedom, and a diversity of substantive conceptions of human good: RA Duff, ‘Penal Communities’ (1999) 1 Punishment Soci 27, 32.

75 For Duff’s views on the relationship between citizens, non-citizens and the state, see RA Duff, ‘Responsibility, Citizenship, and Criminal Law’ in RA Duff and Stuart P Green (eds), Philosophical Foundations of Criminal Law (Oxford University Press 2011) 125–48, 141–48.

76 See, e.g. Duff, Answering for Crime (n 18) 45–46, 82–89.

77 See, e.g. Duff, Punishment, Communication, and Community (n 18) ch 4.

78 Duff, Trials and Punishment (n 18) 278.

79 Andrew Von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford University Press 2005) 11.

80 Duff, Punishment, Communication, and Community (n 18) 132.

81 ibid 135–37.

82 See, e.g. RA Duff, Criminal Attempts (Oxford University Press 1996).

83 See Duff, Answering for Crime (n 18) ch 7.

84 ibid 148. In this example, the victims’ right to bodily integrity is threatened.

85 If the individual intends to place people at risk (an ‘intended endangerment’), they have engaged in an attack. Endangerments consist in the creation of risk without the intention to cause either the relevant injury or the risk of it: ibid 152.

86 ibid 151.

87 ibid 161.

88 RA Duff, Intention, Agency and Criminal Liability (Blackwell 1990) 202. Because attacks are oriented towards injury, Duff considers them to be essentially injurious even if the threatened harm does not eventuate.

89 ibid 203.

90 RA Duff, ‘Intention Revisited’ in Dennis J Baker and Jeremy Horder (eds), The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams (Cambridge University Press 2013) 148, 167.

91 Duff, Intention, Agency and Criminal Liability (n 88) 114.

92 See Jamie Walvisch, ‘Sentencing Offenders with Mental Health Problems: A Principled Approach’ (PhD Thesis, Monash University, 2015) ch 6 for further discussion of the considerations that will be relevant to assessing the culpability of attack and endangerment offences.

93 See ibid ch 8 for an analysis of the different ways in which an offender’s mental health problems may affect the assessment of their culpability.

94 John M Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (Cambridge University Press 1998) 171. They provide the example of a painting being a ‘genuine Picasso painting’ as being a historical phenomenon: it depends crucially on its history (that it was painted by Picasso). By contrast, aesthetic properties such as ‘smooth’ and ‘round’ are non-historical phenomena.

95 ibid 186–87.

96 ibid 195.

97 ibid 50.

98 For a detailed discussion of the dynamics involved when women kill in response to violence, see Victorian Law Reform Commission, Defences to Homicide: Options Paper (Victorian Law Reform Commission 2003) ch 4.

99 This can be seen in studies which have found a relationship between drug use, psychosis and offending (see, e.g. Wallace, Mullen and Burgess (n 9); Fazel et al (n 9)) and between medication non-adherence and criminal acts (see, e.g. Slodov (n 13) 300; Torry and Weiss (n 13) 232).

100 Duff, Answering for Crime (n 18) 161.

101 Under Duff’s account of crime and punishment, a complete defence should ordinarily be provided to individuals who were not reasons-responsive at the time of the alleged offence: ibid 286. This includes individuals who were unable to act in accordance with the reasons they recognise for acting in a particular way. While this is currently the law in some jurisdictions, many jurisdictions do not include a volitional component in their version of the ‘insanity’ defence (see (n 16)).

102 It is not clear, on these facts, whether X was culpable for failing to take their medication, as that will require an assessment of factors such as their insight into their condition and the reasons for stopping: see below.

103 To a large extent, the offender’s level of culpability in this scenario will depend on the likelihood of her becoming psychotic and acting violently. If there was only a minimal risk this would occur, then her culpability may be mid-level; if it was extremely likely her culpability would be higher.

104 The factors listed here assume that the offender has committed an act of endangerment at T1. This will ordinarily be the case, as the offence committed is likely to have been a side-effect of their action rather than its object. If, however, the offender took drugs or ceased medication specifically for the purpose of committing an offence, it should be considered an attack. This will affect the nature of the culpability assessment. For a detailed analysis of the factors relevant to assessing an offender’s meta-culpability, see Walvisch, Sentencing Offenders with Mental Health Problems (n 92) 292–96.

105 ‘Conscious’ reasons are the rational explanations that can be given for a person’s actions, which relate to their conscious beliefs and desires. They can be contrasted with ‘non-conscious reasons’, such as medical or psychiatric explanations for a person’s actions: see Victor Tadros, Criminal Responsibility (Oxford University Press 2005) 27–28.

106 See, e.g. Semahegn and others (n 10).

107 Byast (n 20).

108 Summary Offences Act 1966 (Vic) s 17(1)(d).

109 Crimes Act 1958 (Vic) s 31(1)(b).

110 ibid s 23.

111 ibid s 24.

112 Road Safety Act 1986 (Vic) s 49(1)(bb).

113 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73.

114 Byast (n 20) [23].

115 ibid [23].

116 ibid [37].

117 ibid [21]. Mr Byast had a long-term, ongoing dependence on cannabis. He had also previously had a dependence on methamphetamine and continued to use the drug intermittently.

118 Depot medication is slow-release medication given by injection.

119 Byast (n 20) [29]. While Mr Byast had been using cannabis daily leading up to the offence, and had smoked the previous night, it was not clear whether he was under the influence at the time of the offences. Even if he was, it was accepted that his behaviour could not be explained solely by intoxication.

120 While 9 ng/mL of Delta-9-tetrahydrocannabinol was found in his bloodstream, no evidence had been given about how that concentration of cannabis would have been expected to impact upon his driving skills.

121 Byast (n 20) [39].

122 ibid.

123 ibid [40].

124 See, e.g. Arvanitidis (n 22); Wright (n 36).

125 For the sake of brevity, the focus here is solely on the driving offences committed. A similar analysis could be applied to the other offences.

126 It is possible that these matters (as well as other matters that would be relevant to the suggested approach) were not raised in evidence or reported by the judge, as they were not considered relevant under the current sentencing framework.

127 For a detailed analysis of Victoria’s mental health system, see Royal Commission into Victoria’s Mental Health System, Royal Commission into Victoria’s Mental Health System (Royal Commission into Victoria’s Mental Health System 2021).

128 Ivan Potas, ‘Sentencing the Mentally Disordered Offender in Australia’ (1981) 4 Int J Law Psychiatr 107, 107.

129 EW Mitchell, ‘Culpability for Inducing Mental States: The Insanity Defense of Dr. Jekyll’ (2004) 32 J Am Acad Psychiatr Law 63, 66.

130 Mitchell, Self-Made Madness (n 13) xi.

Additional information

Funding

This research was supported by a University of Melbourne Early Career Researcher Grant (503454).