Arthur Patrick Rule v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0191

ARTHUR PATRICK RULE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2022
DATE OF JUDGMENT:	16 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 162
JUDGMENT APPEALED FROM:	[2021] VCC 1911 (Judge Smallwood)

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CRIMINAL LAW – Leave to appeal – Sentence – Plea of guilty – Charges of home invasion, recklessly causing serious injury and intentionally damaging property – Total effective sentence of 9 years’ imprisonment, non-parole period 6 years – Whether judge erred in giving insufficient weight to applicant’s intellectual disability – Whether sentence manifestly excessive – Leave to appeal refused – Muldrock v The Queen (2011) 244 CLR 120 considered.

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Counsel
Applicant:		Mr MD Stanton with Mr T McCulloch
Respondent:		Ms K Hamill
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

On 28 June 2021, the applicant pleaded guilty to one charge of home invasion, one charge of recklessly causing serious injury, one charge of intentionally damaging property and one related summary offence of contravening a personal safety intervention order.
The victim was the applicant’s neighbour, Ms Christina Weller. She had moved to the country in about 2016 to set herself up for retirement. Initially, both Ms Weller and the applicant’s family were on good terms, but this deteriorated. Ms Weller lived alone with the companionship of her dogs.
On 20 July 2019, at approximately 11.00 pm, the applicant and his co-offender, Quinton Rule (‘Quinton’), the applicant’s son, broke a glass door of Ms Weller’s home. The applicant and his son stepped through the door and entered the home. The applicant carried a baseball bat and Quinton carried a straight piece of pipe, approximately one metre long. Quinton hit Ms Weller to the back and she fell to the ground. Both the applicant and Quinton then kicked and hit Ms Weller whilst she was on the ground, mainly to her back, legs and ankles.
The applicant screamed at Ms Weller to ‘Get out, get out of town and don’t go to the cops.’ Ms Weller told the applicant that she did not think she could get up and the applicant kicked her again.
Ms Weller managed to crawl through the family room, over broken glass from the broken door, and through the garden bed outside to make it to her car parked in the carport. As she was crawling, the applicant handed Ms Weller her car keys. Ms Weller asked if she could take her dogs with her and the applicant replied ‘no’. Ms Weller dragged herself into the driver’s seat. She put her car into reverse to drive away. The applicant hit her car windscreen with the baseball bat and screamed at her to get out and leave town. Quinton also hit the bonnet of the car.
Ms Weller drove to a friend’s house, sounded the horn, got out of the car and yelled for help. She was then assisted and an ambulance was called. She had blood on her hands and coming from her mouth. Police were called a short time later. The applicant was arrested at 2.30 pm on 21 July 2019. The applicant said he was unable to remember the incident, that he had been drinking the evening of 20 July, and that he often does not remember things after having an epileptic seizure but that he was unable to say if he had experienced a seizure in the lead up to the incident.
Following a plea, on 24 November 2021, a judge of the County Court imposed a sentence that was structured as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Home invasion	25 years	7 years	Base
2	Recklessly causing serious injury	15 years	5 years	2 years
3	Intentionally damaging property	10 years	6 months	N/A
Related Summary Offences
9	Contravene final personal safety intervention order	2 years/240 penalty units	2 months	N/A
Total Effective Sentence:		9 years
Non-Parole Period:		6 years
Pre-sentence Detention Declared:		280 days
Section 6AAA Statement:		Total Effective Sentence 13 years Non Parole-Period 10 year
Other Relevant Orders: 1. Compensation order

Reasons for sentence

After outlining the circumstances of the offending, the judge described the injuries sustained by Ms Weller. As a result of the attack, Ms Weller was an inpatient at the Royal Melbourne Hospital for 14 days, four of which were spent in the intensive care unit. She underwent three separate surgeries during that time, including the removal of her spleen, surgery on her ribs and hand surgery. Her ribs had to be pinned and screwed back together and one of her fingers required five screws to hold the splintered bone together. She also required a blood transfusion, had bruising to both lungs and sustained ongoing impaired hand functioning. The judge read Ms Weller’s victim impact statement in full. In summary, Ms Weller described the consequences of the offending as ‘unrelenting’ and noted that she had been diagnosed with life-long health issues. Ms Weller did not feel safe to return to her home and it was subsequently sold.
The judge described the applicant’s offending as ‘extremely serious’ and noted that denunciation and appropriate punishment had ‘a very high significance’.[1] The judge described the offending as ‘almost incomprehensible’[2] and ‘despicable’.[3] The judge said a sentence ‘at the high end is inevitable in this situation’.[4]
[1]Reasons, [20].
[2]Ibid.
[3]Ibid [21].
[4]Ibid.
The judge then set out the applicant’s personal circumstances. The applicant had what was described as a ‘transient childhood’[5] and had attended Lynall Hall. He left school at 14 years and had a good work history, having been involved in car wrecking, panel beating and security. The applicant is functionally illiterate and the judge accepted that his father abused alcohol and was violent towards his mother.
[5]Ibid [25].
The judge accepted that there had been a delay between the applicant being charged and sentenced, and that a lot of this delay was attributable to trying to obtain an appropriate psychological report of the applicant.
The judge noted that the applicant was diagnosed with epilepsy in 2006 and that he ceased work at that time.[6] The judge referred to the neuropsychologist report of Ms Jane Lofthouse, who found the applicant had a full scale IQ of 61 and that many aspects of his functioning ‘were very limited.’[7] The judge accepted that the applicant had been diagnosed with a mild intellectual disability and that he had a history of self-harm and depression.
[6]Ibid [27].
[7]Ibid [29].
The judge accepted that custody would be more difficult for the applicant compared to those who do not have his difficulties, but noted that there were no matters involving the applicant’s health that could not be dealt with effectively in a custodial environment.[8]
[8]Ibid [30].
In mitigation, the applicant relied on his intellectual disability, the delay, his plea of guilty, that any period of incarceration would be more onerous because of the uncertainty relating to COVID-19 restrictions, and his mental health, including that at times he had been severely depressed.
The judge referred to Muldrock v The Queen[9] and Stevens v The Queen[10] in the following passage:
I am well aware of the principles in cases such as Muldrock and Stevens about general deterrence and any sentence on that basis will clearly amount to specific deterrence and potentially moral culpability. I have real concerns that in these circumstances, a man of your age with your life experience, would continue to belt a totally defenceless woman, who was just trying to get to her car to escape the violence of you and your son. In these circumstances, I am reducing the sentence I would have otherwise imposed, because of your intellectual disability, but I do with a certain degree of caution.
Insofar as general deterrence are concerned, again, this sort of conduct I would have thought that a sentence should deter anybody no matter what their mental state, from behaving in a manner such as this. It was not a – not a sudden decision, weapons were obtained whether you gee’d each other up, and I do not know. And once she had been disabled by whichever one of you, you each continued at it, even when she was trying to get away, you then could not help yourselves in terms of trying to smash up her car.
However, again, so far as general deterrence is concerned I do make what allowance I can, bearing in mind the principles enunciated in Muldrock and similar such decisions. … [11]
[9](2011) 244 CLR 120; [2011] HCA 39 (‘Muldrock’).
[10][2021] VSCA 218 (‘Stevens’).
[11]Reasons, [31]–[33].
The judge found the applicant’s rehabilitation prospects to be ‘problematic’ and that the applicant had demonstrated little insight or remorse into his offending.[12] The judge then returned to the impact of the applicant’s low intellectual functioning:
As an indicator I have taken into account the delay, the COVID[,] the Verdins, I think obviously and Muldrock, it is a situation where unfortunately for you in your situation, the sheer objective seriousness of what you have done tends to make the other matters part of a little however, I most certainly have endeavoured as best I can to take them all into account. … [13]
[12]Ibid [34].
[13]Ibid [35].

Grounds of appeal

The applicant seeks leave to appeal the sentence on the following grounds:[14]
1.The sentences imposed on charges 1 and 2, and the order for cumulation in respect of charge 2, are manifestly excessive.
2.The sentencing judge erred in doubly punishing the applicant.
3.In relation to the applicant’s intellectual disability, the sentencing judge erred by failing to properly apply the principles from Muldrock v The Queen (2011) 244 CLR 120.
[14]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.

Parties’ submissions

Under cover of ground 1, the applicant submits that the judge allowed considerations relevant to the objective gravity of the offending to swamp all other sentencing considerations, including the applicant’s intellectual disability and the utilitarian value of his guilty plea.
In relation to ground 2, the applicant submits that the judge must have doubly punished him in the imposition of the sentence on charge 2 and the order for cumulation on that charge, whilst utilising that same conduct to arrive at the sentence of imprisonment on charge 1. The applicant says that the judge must have allowed the conduct which forms the basis of charge 2 to inform the objective seriousness of charge 1.
The applicant submits under ground 3 that the judge, in effect, found that the mitigatory principles in Muldrock must give way when the objective seriousness of the offence is at a high level. The applicant also submits that the sentences imposed are of such length that they clearly have, as one of their primary purposes, the aim to deter other members of the community from engaging in similar conduct, when such a purpose is largely inappropriate because the applicant is not an appropriate medium for making an example to others.[15]
[15]Relying on R v Mooney (unreported, Court of Criminal Appeal, 21 June 1978) 5 (Young CJ).
The respondent submits that the applicant has not satisfied the high burden of manifest excess in relation to the impugned sentences. It submits that the sentences were not wholly outside the range, particularly having regard to the objective gravity of the offending, that charges 1 and 2 were serious examples of the offences, and that charge 1 was committed in company and with a weapon.
The respondent also submits that the cumulation imposed on charge 2 was moderate and that the judge had specific regard to the risk of double punishment.
In regards to ground 3, the respondent submits that there was ‘robust debate during the plea’ on the impact of the applicant’s intellectual disability, his ability to function independently in the community and his capacity to appreciate the wrongfulness of his offending. The respondent notes that the judge correctly identified the evidence of a causal link between the applicant’s offending and his intellectual disability, and indicated he would reduce the sentence accordingly.

Consideration

It is convenient to deal with the applicant’s arguments based on specific error under grounds 2 and 3 first.
In Muldrock, the Court stated:
One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited said this:
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
In the same case, Lush J explained the reason for the principle in this way:
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
The principle is well recognised. It applies in sentencing offenders from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[16]
[16](2011) 244 CLR 120, 138–9 [53]–[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 39 (citations omitted).
Muldrock involved a serious sexual offence against a nine year-old-boy by an offender who had significantly compromised cognitive functioning, as evidenced by an IQ of 62; expert opinion that revealed that his receptive and expressive language was equivalent to that of a child aged five and a half years; and a functioning in the lowest 0.1 per cent of the population in terms of his adaptive behaviour. The High Court concluded that punishment, in the sense of retribution, and denunciation did not require significant emphasis in light of the appellant’s limited moral culpability for his offence. And there was no requirement for general deterrence.
As this Court said in the decision of Stevens:
As Muldrock makes clear, an intellectually disabled offender’s moral culpability will in most cases be lessened — although not necessarily eliminated — due to a reduced capacity to reason as to the wrongfulness of his or her conduct. The aspects of denunciation and just punishment in a sentence appropriate for a person of ordinary capacity will often — but, presumably, not always — be inappropriate for an intellectually disabled offender (and the needs of the community). So much is consistent with what had earlier been said in Verdins.[17]
[17][2021] VSCA 218, [31] (Priest and Kennedy JJA) (emphasis in original) (citations omitted).
Two points warrant emphasis. Whether and to what extent an intellectual impairment or compromised mental functioning will be relevant to a sentence depends on a variety of factors. Critical to the analysis will be an assessment of how the mental status contributed to or was involved in the offending. As R v Verdins[18] makes plain, the linkage, usually expressed in terms of causation, is critical. In Muldrock, the High Court explained that difficult issues of causation are less likely to arise in sentencing a ‘mentally retarded’ offender. That is because, in such cases, the ability of the offender to reason as to the wrongfulness of the conduct will often be obviously compromised. Of course, this will only concern persons who have the capacity to sustain criminal responsibility. In making that observation, the Court was not setting down a principle of law or a rule of universal application, but an observation based on human experience. Ultimately, the issue of causation will be one of fact to be determined on the evidence in the particular case.[19]
[18](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[19]Brown v The Queen [2020] VSCA 212, [61] and [69] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
Second, the application of the principles explained in Muldrock and Verdins do not dictate a particular outcome. They explain how particular attributes of an offender may be relevant to sentence and will moderate the weight that might otherwise be accorded to denunciation, and specific and general deterrence. However, the extent to which that is so cannot be reduced to a particular formula. It is imperative that the principles not be reduced to ritual incantation, but equally that they not swamp other considerations, including community protection, so as to produce an entirely inadequate sentence.
The expert evidence tendered by the applicant on the plea consisted of the report of Ms Lofthouse. As noted by the judge, that report showed that the applicant had an IQ of 61 and intellectual deficits across a range of domains including verbal and non-verbal comprehension, with slow information processing and significant attention fluctuations. Asked for her opinion as to whether these deficits might have contributed to the offending, Ms Lofthouse accepted that the relevant deficits, which were developmental in nature, would have been present at the time of the offending, but as to the link with the offending, the author wrote:
On testing Mr Rule demonstrates intellectual impairment with mild to moderate deficits of executive function marked by restricted problem solving skills. Deficits in problem solving such as noted with Mr Rule are likely to impact, at times, on his ability to make reasoned and informed decision[s] and place him [at] risk of impulsive behaviour and ill-considered problem solving. Considering Mr Rule’s intellectual impairment is developmental in nature it would have been present at the time of his current charges and been a contributing factor in the criminal offending that resulted in his current charges.
Mr Rule’s intellectual impairment is noted against psychological symptoms including negative responses to stress such as over arousal. Although these symptoms may have resulted in impulsive behaviour it is not possible to make comment as to whether psychological symptoms were present at the time of the criminal offending that resulted in his current charges without assessing him at that time.
As to the relevance of the applicant’s intellectual disability to any period of incarceration, Ms Lofthouse concluded that if the applicant’s intellectual impairment is not taken into account, presumably by prison staff or other prisoners, ‘then it may place him at risk of impulsive and ill-considered responses and make his ability to complete a term of imprisonment more difficult in comparison to persons who do not suffer from these conditions.’ Based on the applicant’s report of an earlier period of incarceration, which had been associated with added stress, suicidal thoughts and increased seizures, Ms Lofthouse conceded that it was more than likely that the applicant’s psychological function will deteriorate during a period of incarceration and that this will impinge on his ability to complete a period of incarceration in comparison to persons who do not suffer from these conditions.

The judge accepted this evidence, noting that the formal description of the applicant being ‘mildly intellectually disabled’ was ‘extremely misleading’, thereby implying that the use of the word ‘mild’ understated the extent to which the applicant was mentally disabled.[20] The judge quoted the passage in Ms Lofthouse’s report that the applicant’s impairment would have contributed to the offending. The judge said that he was taking into account Muldrock, but ‘with a certain degree of caution.’[21]
[20]Reasons, [28].
[21]Ibid [31].
With great respect to the judge, his explanation as to how he was applying Muldrock and Stevens, which is set out above,[22] is imperfectly expressed. The first sentence of the passage quoted above at [15] is opaque, and the second sentence does not seem to accord with what immediately follows. However, when read in the context of the reasons as a whole, and given the judge’s acceptance of the evidence of Ms Lofthouse, it is tolerably clear that the judge reduced the weight he attached to specific deterrence because the ferocity and duration of the attack was influenced, to an extent, by the applicant’s intellectual disability. It is also clear that the judge accepted that, by reason of the applicant’s impairment, his moral culpability was somewhat reduced. However, it is also plain from the judge’s reasons that, notwithstanding the significant level of impairment, the judge regarded specific deterrence as of continued relevance. There was no error in that conclusion.
[22]See [15] above.
It is apparent from his reasons that the judge regarded the offending as being of a kind that required significant punishment. Given the extreme features of the deplorable attack, both in terms of its brutality and impact, that conclusion was not surprising. Still less did it evidence specific error. The evidence of Ms Lofthouse identified the applicant’s intellectual disability as ‘a contributing factor’ to the offending. It is not clear from her report precisely how the applicant’s intellectual deficits were causative of the offending. The applicant submits that the evidence showed he was impulsive and had an inability to reason carefully. So much may be accepted. However, there is no doubt that the victim of the offending was not randomly selected or that the offending itself was simply an impulsive outburst. It is likely that the ferocity of the attack was in part a product of the applicant’s impulsivity and the extent of the violence was not the product of any particular foresight on his behalf. In fact, there had been a history of antipathy between the applicant and Ms Weller, and the applicant and his son targeted her in a brutal attack. Although the violence was wanton, it was not entirely spontaneous and emerged in a particular context in which the applicant had been involved.
The judge noted that the incident was not the product of a sudden decision and the protracted assault continued even after the victim attempted to flee. The evidence did not suggest that the applicant’s mental capacity was close to attracting a defence based on mental impairment. He had a positive work history in a variety of settings and he was well capable of understanding the extent of his wrongdoing. Having regard to the observations of Lush J about the relationship between deterrence and retribution,[23] the need to punish the applicant remained a significant aspect of the sentencing task. Although his level of impairment was material to the offending, it did not render punishment inappropriate nor make specific deterrence unwarranted. We do not accept that the applicant had no appreciation of the extent of his wrongful conduct, and his conduct can properly be seen as motivated by his desire to punish Ms Weller and have her leave her house. For that reason, his moral culpability could not be removed from the calculus.
[23]R v Mooney (unreported, Court of Criminal Appeal, 21 June 1978) 8.
For similar reasons, the applicant’s impairment did not mean there was no room for general deterrence. The reasons given by the judge do not reveal any specific misapplication of principle. Although, as already noted, the reasons could have been expressed with greater clarity, we are not persuaded that the judge failed to consider and apply the principles explained in Muldrock. We are also not persuaded that the judge’s professed intention to moderate the sentence based on the applicant’s reduced moral culpability was not given effect to. For offending of this gravity, an offender without the applicant’s deficits could well have received a longer term of imprisonment.
It follows that ground 3 is not made out.
Likewise, we are unable to accept ground 2. The offences of home invasion and recklessly causing injury involve different elements and different criminality. There is no reason to consider that the judge erred in the manner alleged. The home invasion was appalling. The applicant was armed with a weapon and in the company of his co-offender. The means of entry was violent, with a glass door being smashed. It would have been terrifying for the relatively elderly occupant who lived alone with no means to repel the invasion. Forcing entry into a neighbour’s house in that manner was a serious example of a serious offence.
Once across the threshold, the assault was vicious, protracted and cowardly. The assault involved weapons and multiple blows to the torso that resulted in organ damage and hospitalisation. The bashing was accompanied by threats designed to drive the victim from her home. That would have only increased the terror of the assault.
The two offences called for a degree of cumulation, and the order that two years be served cumulatively on the base sentence was well open and did not involve any double punishment.
We turn then to ground 1. We have already set out the particulars of the offending and our reasons for rejecting grounds 2 and 3. Those reasons provide much of the explanation for why we are unable to accept that the individual sentences and the total effective sentence are manifestly excessive.
At the hearing of this application, the applicant submitted that a period of incarceration would be more burdensome for him due to his illiteracy. So much can be accepted. However, we note that this submission was not made on the plea. In any event, the judge accepted that prison would be more difficult for the applicant because of his depression and past episodes of self-harm.[24]
[24]Reasons, [30].
A sentence of seven years’ imprisonment for the home invasion was well open. Due allowance for the applicant’s mental capacity meant that there had to be some moderation of the sentence. However, there remained ample justification for the sentence imposed by the judge. The same may be said of the sentence imposed on the injury charge.
We would refuse leave to appeal.
At the hearing of this application, the Court was informed of an error in the calculation of the pre-sentence detention. At sentence, the pre-sentence detention was declared to be 280 days. This was an error and it should have been 286 days. This Court has held that this type of error is not a sentencing error[25] and the parties accepted that it does not affect the validity of the sentencing discretion itself. An order adjusting the pre-sentence detention declaration to reflect the true position should be made.
[25]DPP v TY [No 2] (2009) 24 VR 705; [2009] VSCA 226.
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[2022] VSCA 162

16 August 2022