Personality Disorder and Sentencing in the criminal courts: emerging themes in mental health evidence and jurisprudence after Brown v The Queen

Dr Andrew Carroll1,2,4, Mr Tim Marsh3

1Our Curious Minds, Melbourne, , 2Centre for Forensic Behavioural Science, Swinburne University of Technology, Alphington , 3Foleys List, Melbourne, , 4Forensicare, Clifton Hill

In August 2020, the Victorian Court of Appeal handed down its judgment in Daylia Brown v The Queen (VSCA 212). The Court ruled that an “offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins.” It further stated that “to what extent the offender’s mental functioning is (or was) relevantly impaired should be determined on the basis of expert evidence rigorously scrutinised by the sentencing court”.

This landmark ruling has now been cited in over 20 cases before the courts for sentencing, in Victoria and in other jurisdictions. Consistent themes have begun to emerge regarding the issues that come under particular scrutiny by the courts in such cases.

In this symposium we will focus on a range of such themes including:

  • the issue of ‘severity’ as applied to personality disorders
  • the issue of ‘causal relationships’ between personality disorder and offending
  • the issue of aetiology of personality disorders and the potential for overlap with the well-established ‘Bugmy’ principles in sentencing.

We will also consider implications stemming from the above for mental health experts providing evidence in sentencing hearings.


Biography:

Andy Carroll  has worked as a forensic psychiatrist in both treatment and assessment roles in Australia for over two decades. He currently carries out treatment work in a prison clinic, medicolegal assessment work in both criminal and civil fields and is an Adjunct Associate Professor at the Centre for Forensic Behavioural Science (Swinburne University of Technology). He is also Co-Director at ‘Our Curious Minds’, a mental health training enterprise. He has published on a range of topics including  the interface between mental disorder and sentencing in the criminal courts. He was an expert witness in original hearing in the landmark case of Brown.

Tim Marsh completed a Law and a Science Degree at Melbourne University, majoring in Genetics. After working as a solicitor at the Office of Public Prosecutions, Tim went to the Bar in 2003, reading with Mark Rochford QC. He has practiced exclusively in crime. In 2011 Tim joined Victoria Legal Aid as a Senior Public Defender. in 2013 he was appointed as Chief Counsel, and for the next 7 years led VLA Chambers, before deciding to return to the Bar in November 2020.

Tim was counsel in the landmark case of DPP v Walters, which saw the controversial ‘baseline sentencing’ reforms declared ‘incapable of practical application’ by the Court of Appeal. Tim regularly appears in serious homicide cases: he was counsel for Jaymes Todd (the murder of Eurydice Dixon), and for Codey Herrmann (the murder of Aiia Maasarwe).

While Tim practices in all areas of crime, he has a strong practice in mental impairment and disability law. His work at first instance and on appeal in this area have helped clarify and reshape how the Victorian Courts treat offenders with mental illnesses. In 2020, his advocacy in the decision of Brown v The Queen saw the 2017 case of DPP v O’Neill overturned, allowing courts to take personality disorders into account in sentencing. In 2021, he appeared in the appeal of DPP v Herrmann, which further clarified issues of disadvantage in sentencing.