Summary of Judgment

Director of Public Prosecutions (Vic) v O'Neill[2015] VSCA 325

2 December 2015

NOTE: This summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

Today the Court of Appeal dismissed the appeal of the Director of Public Prosecutions against the sentence of Michael O’Neill for murder and arson.

O’Neill murdered his long term partner, Stuart Rattle, at their home after an argument. He then pretended Rattle was not dead. Five days later, O’Neill set fire to the home and burnt Rattle’s body. O’Neill pretended the fire was an accident.

O’Neill pleaded guilty to both the charges of murder and arson and was sentenced to a total of 18 years imprisonment with a non-parole period of 13 years.

The Director appealed on the grounds that the sentence was manifestly inadequate given the circumstances of the killing, the fire and the conduct of O’Neill afterwards; that the fire was an aggravating feature; that O’Neill’s offending had wrongly been regarded as being at the ‘lower end’ of the scale; and that the non-parole period was too low.

A psychologist gave evidence before the sentencing judge that O’Neill suffered from a dependant personality disorder with prominent features of a narcissistic personality disorder. O’Neill relied on the disorder before the sentencing judge, submitting that the principles stated in the case ofR v Verdinsmeant that because of his psychological disorder, his sentence should be reduced.

On the plea the prosecutor did not expressly challenge this submission. The prosecutor submitted that on the basis of the personality disorder general deterrence had a moderate role to play in the sentencing process. The prosecutor did not submit that the Verdinsprinciples were inapplicable. On the appeal the Director took a different position, arguing that O’Neill’s personality disorder should not have been taken into account to reduce the sentence. The Court of Appeal held that the Director was bound by the prosecutor’s position on the plea and could not take a different position on the appeal: [88], [93]. Nonetheless, the Court considered the scope of the Verdins principles and concluded that they are only enlivened where the offender suffers from impairment of mental functioning: [71]. Verdins principles do not apply to personality disorders: [85].

The Court held that O’Neill’s personality disorder was however relevant in assessing his moral culpability: [96]. The Court said the sentencing judge was correct to accept the psychologist’s evidence that the difficult and conflicted emotional life which O’Neill endured had resulted in the development of a highly complex disorder: [99]. The Court said the evidence made plain that O’Neill’s fragile psychological state and complex profile were the product of the unusual and difficult nature of his background and circumstances: [100].

The Court observed that:

  • the murder was unpremeditated;
  • it resulted from the implosion of psychological factors;
  • O’Neill had no prior convictions;
  • there was an early plea of guilty;
  • there was genuine remorse;
  • after desisting from his initial charade, O’Neill had made full confessions to the police: [120], [134].

The Court noted that there were serious aspects of the offending but, also, important mitigating circumstances: [133], [134].

On the Director’s grounds of appeal, the Court found:

  • It was open to the judge to sentence on the murder and to cumulate in respect of the arson. Because the prosecutor supported that approach on the plea, the Director was bound by it and could not argue error on the appeal: [115].
  • The prosecutor had argued at the plea that the murder was premeditated and carried out for financial gain. The sentencing judge had rejected this argument, and the Court held that it was open to the judge to decide that way: [119].
  • The sentence of 17 years for murder was not at the lower end of the scale; rather it was at the lower end of the middle range: [120].
  • The judge had explained why she fixed the non-parole period at 13years and the Director had not argued that the judge’s reasons were erroneous. The judge correctly assessed the non-parole period. It was noted that the non-parole period was 72% of the head sentence: [122]–[124].
  • The Director failed to identify any material error of fact or law by the sentencing judge. It could not be maintained that the sentence imposed on O’Neill was manifestly inadequate in the required sense — that is, wholly outside the range of sentences available to the judge: [135].

The Verdinsprinciples

The Court of Appeal considered the Verdins principles in detail: [35]ff. The Court summarised the scope and limitations of the Verdins principles:

  1. They are enlivened only where the offender suffers from impairment of mental functioning: [71]. Verdins principles do not apply to personality disorders: [85].
  2. For the first to fourth limbs of Verdins to have application, there must be some realistic connection between the impairment to mental functioning and the offender’s moral culpability or the need for general deterrence: [74].
  3. To show the necessary connection,the offender must establish that the mental impairment affected his or her ability to appreciate the wrongfulness of the conduct: [75].
  4. The fifth and sixth limbs of Verdinsmay operate on the sentence where it is shown that the offender’s mental impairment may cause hardship: [76].
  5. Cogent evidence, normally in the form of an expert opinion, as to the existenceof the mental impairment and its nature, extent and effect is necessary: [77].
  6. Courts must be rigorous in evaluating the evidence and applying Verdins principles: [78], [80]. The prosecution should provide full assistance to the court in this regard: [81].
  7. An existing mental impairment at the time of sentence may be relevant to general deterrence: [82].
  8. Moderation of general deterrence will normally not apply where the mental impairment is a reaction to the offending or the prospect of being sentenced: [83].

Crown appeals against sentence

The Court of Appeal also considered the circumstances in which the Director may bring an appeal against sentence.

The Court rejected the argument that in a Crown appeal against sentence, the Crown can only succeed on a specific error ground if it also establishes that the sentence was manifestly inadequate. To be capable of supporting intervention on appeal, a specific error relied upon by the Crown must raise a matter of principle that needs to be addressed for the governance and guidance of sentencing courts or in order to establish or maintain proper sentencing standards. Where a specific error ground has this quality, it is not necessary for the sentence to be manifestly inadequate in order for the Director to bring or succeed on the appeal: [103]–[110]. However, the degree to which the specific error affected the sentence and whether the sentence is manifestly inadequate will be relevant to whether the court should in the exercise of its discretion refuse to intervene: [111].

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