Clifton v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0013

DANIEL CLIFTON	Appellant
v
THE KING	Respondent

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JUDGES:	EMERTON P and McLEISH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2024
DATE OF JUDGMENT:	30 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 82
JUDGMENT APPEALED FROM:	DPP v Daniel Clifton (Unreported, County Court of Victoria, Judge Rozen, 10 November 2022)

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CRIMINAL LAW – Appeal – Sentence – Appellant guilty of 15 sexual offences against child under 16 – Appellant has diagnosed intellectual disability – Whether error in failure to accord any or due weight to appellant’s intellectual disability in reduction of moral culpability and reduced need for general and specific deterrence – Total effective sentence of 8 years 10 months – Non-parole period of 5 years 10 months – Appeal allowed – Sentences imposed set aside – Appellant re-sentenced to total effective sentence of 7 years and non-parole period of 4 years 9 months.

Muldrock v The Queen (2011) 244 CLR 120; Stevens v The Queen [2021] VSCA 218, applied.

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Counsel
Appellant:		Mr C Terry
Respondent:		Mr R Gibson KC
Solicitors
Appellant:	Mr AL Hands
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
MCLEISH JA:

Introduction

On 15 August 2022, following a trial by jury in the County Court of Victoria, the appellant was found guilty of 15 sexual offences against a minor: one count of rape; 10 counts of sexual penetration of a child under 16; and four counts of committing an indecent act with a child under 16.
On 23 November 2022, the appellant was sentenced as follows:

Charge on Indictment[1]	Offence	Max Penalty	Sentence	Cumulation
Indictment L12535906
1	Sexual penetration of a child under 16[2]	10 years	2 years 6 months	3 months
2	Indecent act with a child under 16[3]	10 years	2 years	2 months
3	Sexual penetration of a child under 16[4]	10 years	2 years 6 months	3 months
4	Indecent act with a child under 16[5]	10 years	1 year 6 months	2 months
5	Sexual penetration of a child under 16[6]	10 years	2 years 6 months	3 months
7	Sexual penetration of a child under 16[7]	10 years	2 years 6 months	3 months
8	Indecent act with a child under 16[8]	10 years	1 year 6 months	2 months
9	Sexual penetration of a child under 16[9]	10 years	3 years	3 months
10	Sexual penetration of a child under 16[10]	10 years	2 years 6 months	3 months
11	Indecent act with a child under 16[11]	10 years	1 year 6 months	2 months
12	Sexual penetration of a child under 16[12]	10 years	3 years	3 months
13	Sexual penetration of a child under 16[13]	10 years	2 years 6 months	3 months
14	Sexual penetration of a child under 16[14]	10 years	2 years 6 months	3 months
15	Sexual penetration of a child under 16[15]	10 years	3 years	3 months
17	Rape[16]	25 years	5 years 8 months	Base
Total Effective Sentence:		8 years 10 months
Non-Parole Period:		5 years 10 months
Pre-sentence Detention Declared:		87 days
Other Relevant Orders: 1. Offender is sentenced as a serious sexual offender in respect of charges 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 pursuant to s 6F of the Sentencing Act 1991. 2. Reporting obligations imposed on the offender for life pursuant to s 34 of the Sex Offenders Registration Act 2004.

[1]Charges 6, 15 and 18 were alternative charges.

[2]Contrary to s 45(1) of the Crimes Act 1958.

[3]Contrary to s 47(1) of the Crimes Act 1958.

[4]Contrary to s 45(1) of the Crimes Act 1958.

[5]Contrary to s 47(1) of the Crimes Act 1958.

[6]Contrary to s 45(1) of the Crimes Act 1958.

[7]Contrary to s 45(1) of the Crimes Act 1958.

[8]Contrary to s 47(1) of the Crimes Act 1958.

[9]Contrary to s 45(1) of the Crimes Act 1958.

[10]Contrary to s 45(1) of the Crimes Act 1958.

[11]Contrary to s 47(1) of the Crimes Act 1958.

[12]Contrary to s 45(1) of the Crimes Act 1958.

[13]Contrary to s 45(1) of the Crimes Act 1958.

[14]Contrary to s 45(1) of the Crimes Act 1958.

[15]Contrary to s 45(1) of the Crimes Act 1958.

[16]Contrary to s 38(1) of the Crimes Act 1958.

On 22 September 2023, Macaulay JA granted the appellant leave to appeal against his sentence and to raise the following grounds of appeal:[17]
Ground 1: the learned sentencing judge erred by failing to consider the relevance of the appellant’s diagnosed intellectual disability, both in terms of the reduction in moral culpability and the reduced need for general and specific deterrence.
Ground 2: the head sentence, cumulation, minimum term and the total effective sentence were all manifestly excessive.
[17]Clifton v The King [2023] VSCA 232 (‘Leave to Appeal Reasons’).
For the reasons that follow, the appeal is allowed and the appellant is re-sentenced to a term of imprisonment of 7 years, with a non-parole period of 4 years and 9 months.

The offending

The appellant was between 18 and 19 years old during the period of offending. He lived with his parents and an older brother in Lara, near Geelong. The complainant, BM, was 12 years old during the period of offending. She lived with her father and two older siblings in a suburb of Geelong.
From the time she was quite young, BM’s father would take her roller skating every Friday and Saturday night at ‘Rollerway’ in Geelong. Initially, her father would stay while she skated but, after attending for a number of years, BM got to know other people and her father would simply drop her off and pick her up.
The appellant also regularly attended Rollerway. He was older, drove a car and was one of the better skaters. BM developed a crush on him.
Sometime in late 2014, BM’s father began to work in the evenings and could no longer collect BM from Rollerway. The appellant offered to pick BM up from her home and drop her back home after skating.
The first time the appellant dropped BM home, he parked his car several houses away from BM’s house. He hugged BM. When BM’s sister came out onto the street and saw them, she confronted the appellant, who said that BM had injured her leg skating. BM pretended to have a limp and her sister accepted the story. Thereafter, the appellant — with the consent of BM’s father — began to regularly collect BM from her home and drive her to and from Rollerway on Friday and Saturday nights.
There ensued, over the course of 12 months, a series of incidents in which the appellant offended against BM. The following summary of the incidents of offending is taken from the judge’s sentencing remarks:
First incident – in a car park by the Barwon River
Initially, you would drop BM directly home from Rollerway at the end of the evening at approximately 10:30 PM. However, on one evening at a time soon after you began to give BM lifts you suggested that the two of you leave Rollerway early, and you drove BM to a car park near the Barwon River. You and BM got into the back seat of the car. You kissed her, encouraged her to pull down her pants and underpants, and penetrated her vagina with your fingers (Charge 1 – Sexual penetration of a child under 16). At your encouragement, BM then touched your penis with her hand and masturbated you to ejaculation (Charge 2 – Indecent act with a child under 16). After this, the two of you climbed back into the front seats of your car and you drove BM home.
Second incident – in a car park by the Barwon River
On a subsequent occasion you drove BM to Rollerway, left early, and returned to the car park near the Barwon River. You and BM again got into the back seat of your car. You placed your fingers into BM’s vagina (Charge 3 – Sexual penetration of a child under 16) and again, at your encouragement, she touched your penis with her hands (Charge 4 – Indecent act with a child under 16). You then instructed BM to lie down. She complied, and you placed your mouth on her vagina and penetrated her vagina with your tongue (Charge 5 – Sexual penetration of a child under 16). You then drove BM home.
Third incident – in a car park by the Barwon River
Over the following weeks you took BM to the same car park near the Barwon River on a number of occasions. On one of these occasions, you again penetrated BM’s vagina with your fingers (Charge 7 – Sexual penetration of a child under 16) and she rubbed your penis with her hands (Charge 8 – Indecent act with a child under 16). You then asked BM to suck your penis. She complied, and you placed your penis into her mouth. After a period you withdrew your penis from her mouth and masturbated yourself to ejaculation (Charge 9 – Sexual penetration of a child under 16).
Fourth incident – at Mr Clifton’s home in Lara
At some stage in the period after the third incident, you invited BM to come to your home in Lara where you lived with your parents and your brother. Your parents were not present the first time BM visited your house. On this occasion, you made her some butter chicken and watched television in the lounge room before taking her to your bedroom. You lay on the bed, kissed BM and penetrated her vagina with your fingers (Charge 10 – Sexual penetration of a child under 16). You encouraged BM to touch your penis with her hand and she complied (Charge 11 – Indecent act with a child under 16). You then placed your penis into her mouth and instructed her to ‘suck on it’. You later drove BM home (Charge 12 – Sexual penetration of a child under 16).
Fifth incident – at Mr Clifton’s home in Lara
You took BM to your house on another occasion when your parents were home. When the two of you arrived at your house, you introduced BM to your parents as ‘Ash’ and told them that she was 17 years old. You watched television in the lounge room before again taking BM to your bedroom. You instructed BM to lie on your bed and penetrated her vagina with your fingers (Charge 13 – Sexual penetration of a child under 16).[18]
Sixth incident – at Mr Clifton’s home in Lara
On a further occasion when you took BM to your home, you suggested to her that the two of you have sex. After taking BM to your bedroom, you again penetrated her vagina with your fingers (Charge 14 – Sexual penetration of a child under 16). You told BM that you had a condom and asked her if she wanted to have sex; BM agreed. You placed a condom on your penis, placed lubricant upon it, and inserted your penis into BM’s vagina (Charge 15 – Sexual penetration of a child under 16). You were unable to place enough of your penis into her vagina to ‘thrust’. BM told you that she was in pain and asked that you stop having sex. You complied, removed your penis from BM’s vagina and, at her request, later drove her home.
Seventh incident – at Mr Clifton’s home in Lara
On the final occasion that BM attended at your house in Lara, you took her to your bedroom and removed all of your clothing. You sat on top of her chest and forced your penis into her mouth. BM asked you to stop and attempted to physically resist, but despite her protestations, you forced her to perform oral sex on you for approximately 20 seconds (Charge 17 – Rape). BM began to cry and pushed you away, before screaming at you to take her home. You complied and drove her back to her house. Shortly after this incident, BM told you that she no longer wished to see you. You asked her to return the jewellery that you had given her — namely, a necklace with an angel pendant and a pair of gold earrings — and she did so.
[18]The incident numbered as the fifth by the sentencing judge was not numbered in the indictment and was treated as a separate occasion under the heading of the fourth incident in the amended summary of prosecution opening for trial. At all events, charge 13 concerned offending on a distinct and separate occasion.
In around 2016, BM told her father that the appellant had forced her to perform oral sex. In November 2019, BM made a report to police. In January 2020, BM contacted the appellant and asked him to return the jewellery he had given to her. They met and the appellant returned the jewellery. The appellant apologised to BM for arguments they had had in the past, but not for any sexual offending.
In a record of interview conducted at the Geelong Police Station on 8 June 2020, the appellant admitted that he knew BM and that he had driven her home from Rollerway on occasion. He denied all of the charged offending, that BM had ever visited his house in Lara, and that he had bought her any gifts.

The appellant

Personal circumstances

The appellant’s personal circumstances are detailed in the psychological reports to which we refer below. They are more fully described in a character reference provided by the appellant’s mother.
The appellant was born in Geelong in June 1995 and was aged 27 at the time of sentencing. He has one older brother, with whom he has a supportive and close relationship. He was raised by his natural parents. At the time of the offending, he had a very troubled relationship with his father, which was marked by verbal abuse. His parents separated when he was in year 8 and he and his brother lived with their mother, seeing their father on weekends. The appellant’s father returned to the family home when he was in year 10. In 2018, he moved in with his aunt to escape his father’s abusive behaviour. However, because he had become involved with drugs, his aunt asked him to leave and he returned to the family home.
The appellant suffered from learning disabilities and was removed from a mainstream school and placed at a school for specialised support in year 8. He completed year 11 and then undertook a spray-painting apprenticeship, which took him six years to complete. His employment history was marred by abusive employers who, like his father, were impatient with his learning difficulties.
These bare facts are given more substance in the character reference provided by the appellant’s mother, which we extract in full:
Daniel was diagnosed in primary school as having a learning disability and being three to four years behind his peers emotionally. He was also diagnosed as being on the autism spectrum as he played beside others not with them. Daniel went to mainstream schools until year 8 when an IQ test was completed showing his IQ was under 70 and then he was allowed to attend Nelson Park Special School where he stayed until half way through VCAL. He left to start an apprenticeship.
Daniel has had a very hard life, he had a stutter in early life and we took him to a speech therapist for several years to overcome this. When he got stressed or over excited the stutter would return, even now he still stutters occasionally.
Daniel has been physically and mentally abused by his father his entire life, especially when drinking which started getting excessive over twenty years ago. Daniel’s father, Peter was charged with domestic violence against Daniel a few years ago.
Daniel's father, Peter would yell and scream at Daniel for the slightest little mishap or for not listening to what he told him to do. When Daniel was still in primary school he accidently locked the keys in the shed and Peter went mad and banged Daniel’s head against the shed. Another time he picked up Daniel’s scooter and threatened to throw it at him. This is when I decided to leave the marriage, we sold our house and were separated for a year.
Peter had stopped drinking and was a better person so we decided to get back together and bought another house. Shortly after this the drinking started again and the abuse continued. Daniel has had to live in constant fear of his father all his life. Daniel moved out to live with his Aunty at one point but was taken advantage of by some homeless youths when his aunty was away and was then asked to leave her house.
Daniel has been bullied at several workplaces and one instance where the owner’s criminally convicted son threw a car battery at him from the 2^nd floor, which still affects him to this day.
Daniel is desperate to fit in and make friends, so when [BM] asked him over Facebook to give her a ride to Rollerway he said yes, then also started taking others at the same time.
Daniel had an infatuation with a girl called [A] at Rollerway and when he heard that [A] was gender changing to become [gender neutral name] he thought if he gender changed they could be together. [A/gender neutral name] coached Daniel on what to say to the doctor and Psychiatrist to access the medication. Luckily we were able to talk him out of this, but it shows just how easily manipulated and led Daniel is.
Daniel has only ever had three girlfriends, one in high school, one in his late teens, [X] who moved to Tamworth and is still in contact with him. The other was [Y] who is also still a friend. I only ever saw interactions between Daniel and [Y]. Daniel was always a gentleman to [Y] and she clearly had the upper hand in that relationship.
Daniel is a very broken young man and needs psychiatric help to get over his upbringing, he does not belong in prison where he will only be taken advantage of yet again.
Daniel is never forceful and doesn’t get angry with anyone. When pushed Daniel breaks down, he doesn’t lash out.

Psychological and other expert reports

A number of medical and psychological reports were tendered or referred to in the plea. They were, in date order:
(a)Kathryn Barker, psychologist, Catholic Education Office: Summaries of Cognitive Assessment, dated 5 and 13 November 2003;
(b)Dr Chris Cooper, paediatrician: letter to Dr Usha Shah, dated 6 September 2006; letter to Dr Swati Mitra, dated 31 May 2009; letter dated 29 November 2009;
(c)Glenn Chuck, psychologist: Intellectual Disability Assessment Report, dated 9 April 2010;
(d)Simon Candlish, psychologist: Psychological Court Report, dated 15 August 2021;
(e) Debra Smith, psychologist: letter dated 16 August 2021;
(f)Amy Dluzniak, neuropsychologist: Confidential Neuropsychological Assessment Report, dated 3 September 2021; and
(g)Gina Cidoni, psychologist: Psychological Assessment Report, dated 6 October 2022.
It will be observed that the appellant has been the subject of numerous assessments since early childhood. A number of the reports date from his school years. The reports prepared in 2021 and 2022 were prepared for the purposes of court hearings for the present offences.
Macaulay JA helpfully summarised these reports in his judgment in the leave application:
In summary these reports showed that the applicant experienced learning difficulties from at least grade 2 at school. In 2003, Ms Barker measured his Full Scale IQ score finding it to be in the borderline range of ability relative to his age peers. Recommendations were made then for further testing and support. In early 2004, Dr Cooper attributed the applicant’s learning difficulties to a combination of Borderline IQ, Attention Deficit Disorder and Short Term Auditory Memory Deficit. He recommended a trial on dexamphetamine. In 2006, Dr Cooper recorded that the applicant continued to struggle at school with severe learning difficulties in association with poor concentration. He was noted to struggle socially because of his distractible and impulsive nature. In 2008, Dr Cooper recommended to the applicant’s school that he be placed on a modified curriculum and given as much integration assistance as possible due to his significant learning difficulties.
In 2010, Mr Chuck diagnosed the applicant as presenting with a ‘mild intellectual disability’.
In November 2021, at the request of the applicant’s lawyers, Mr Candlish interviewed the applicant for the purpose of providing a psychological assessment and risk assessment report for court purposes. Mr Candlish did not find that the applicant met any criteria for major mental illness nor that he had a personality impairment. He said that he presented with some signs of impaired intellectual functioning. In his opinion the applicant fell into the low-risk category for sexual offending. He noted that the applicant had not been detected for further sexual offending since 2015, appeared to understand that his offending behaviour was harmful and wrong, and showed an understanding of strong societal responses to sexual offences against children.
Debra Smith, who had treated the applicant by way of psychological therapy, was of the view that the applicant was suffering from clinically depressed mood, severe anxiety and outbursts of anger.
Again at the request of the applicant’s lawyers, the applicant was further assessed in August 2021 by Amy Dluzniak. Ms Dluzniak found the applicant had Borderline intellectual function. Formal neuropsychological assessment revealed his intellectual function to be worse than 96 per cent of other individuals his age in the wider community. This, she said was ‘at the cusp of the intellectual disability range’. Ms Dluzniak thought the applicant would likely require some degree of lifelong support with managing more complex activities of daily living. He had a marked degree of concreteness in his thought processes and limited ability to engage in consequential thinking and understand cause-and-effect relationships. In her opinion, the applicant was socially and emotionally immature relative to his chronological age. She also felt that those attributes ‘may render him vulnerable in a custodial environment’.
Gina Cidoni said that the applicant presented with low average intellectual capacity but there were no signs of learning or cognitive disability. Her clinical evaluation indicated diagnoses of paedophilic disorder (non-exclusive type, attracted to females). Causes of that disorder, she explained, could include negative childhood experiences. Common responses from a person with such a disorder included a high vulnerability to stress, trouble controlling and expressing emotions, reduced capacity for empathy and inappropriate reactions to situations. Reduced empathy, she explained, could lead to actions that are morally unjust and harmful to others, or it could present as a lack of understanding and sensitivity. In her opinion the disorder did ‘not meet the criteria for Verdins. She was of the view that the applicant was ‘teetering on the edge of a diagnosis of major depression and anxiety’ which, she said, would no doubt intensify in a prison setting. She also held concerns for the development of a major depressive episode and suicidality.[19]

Reasons for sentence[20]

[19]Leave to Appeal Reasons, [13]–[18].

[20]DPP v Daniel Clifton (Unreported, County Court of Victoria, Judge Rozen, 10 November 2022) (‘Sentencing Reasons’).

Having summarised the circumstances of the offending,[21] the judge considered the objective gravity of the appellant’s offending. The judge accepted that the rape fell in the mid-range for the very serious crime of rape.[22] Overall, the judge concluded that the appellant’s case was a serious example of offending, and found the appellant’s moral culpability to be high.[23] The judge referred to several aggravating factors: the complainant was only 12 years old at the time she was offended against; there was a significant age gap between the appellant and the complainant; the offending involved a breach of trust; and the offending took place over 12 months and occurred on seven occasions.[24]
[21]Drawn from the prosecution’s summary of opening dated 6 April 2021.
[22]Sentencing Reasons, [42].
[23]Ibid [48].
[24]Ibid [48]–[53].
The judge then considered the appellant’s personal circumstances, drawn from the various expert reports filed on his behalf.[25] Those circumstances included the appellant’s mental health and cognitive ability.[26]
[25]Ibid [56].
[26]Ibid [56]–[69].
Under the heading, ‘Verdins’,[27] the judge briefly considered the appellant’s psychological state and its implications for his moral culpability. He concluded that although the appellant was labouring under ‘a significant intellectual disability’, there was little, if any, evidence before the court linking it to his offending.[28] His Honour separately considered the appellant’s diagnosed paedophilic disorder and whether it constituted a mental impairment so as to enliven Verdins principles.[29] The judge found that the evidence did not demonstrate that any impairment suffered by the appellant at the time of offending materially diminished his capacity to reason regarding the wrongfulness of his offending.[30]
[27]Ibid [70].
[28]Ibid [75].
[29]Ibid [76]–[81]; Verdins v The Queen (2007) 16 VR 269.
[30]Ibid [82].
After considering other matters in mitigation,[31] including the appellant’s lack of prior convictions and the absence of any offending since 2015,[32] the judge concluded that the appellant had reasonable prospects of rehabilitation.[33]
[31]Ibid [85]–[90].
[32]Ibid [90].
[33]Ibid [91].
The judge held that the appellant’s offending was ‘quite egregious’ in terms of serious offences and considered that his ‘moral culpability, although reduced to some extent by [his] youth and cognitive disability, [was] high’.[34] The appellant had shown no remorse and had run his trial on the basis that BM was lying about all of his offending.[35]
[34]Ibid [103].
[35]Ibid.

Ground 1 — Treatment of intellectual disability

Submissions

Ground 1 alleges specific error in the failure to accord any or due weight to the appellant’s intellectual impairment, which was said to be multifaceted and clearly related to the offending.
The appellant submits that the judge erred in requiring a causal connection to be established between his intellectual disability and the offending. He contends that to adopt such an approach runs contrary to the principles pronounced by the High Court in Muldrock v The Queen[36] and recently applied by this Court in Stevens v The Queen.[37] Those principles, the appellant argues, do not require proof of a causal nexus between the intellectual disability and the offending. Rather, the presence of an intellectual disability ought to mitigate or reduce the moral culpability of an offender and, in such circumstances, little weight should be given to notions of general and or specific deterrence in sentencing.[38]
[36](2011) 244 CLR 120, 137–9 [50]–[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Muldrock’).
[37][2021] VSCA 218, [30]–[33] (‘Stevens’) (Priest and Kennedy JJA).
[38]Citing Muldrock (2011) 244 CLR 120, 138–9 [53]–[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
The Director points out that Muldrock was not referred to in the plea. Although there was an abundance of material relating to the appellant’s background, all of which was considered in detail by the judge, that material was considered as part of the Verdins analysis. The Director submits that this Court should be slow to accept submissions that go to specific error or mitigation when those matters were not raised in the plea.
The Director submits that, in any event, Muldrock is distinguishable because the appellant’s intellectual disability is less severe than the disability that was under consideration in Muldrock. The Director refers to the range of assessments of the appellant’s intellectual disability over the years and draws attention to the fact that he has, for instance, been capable of completing a spray-painting apprenticeship and holding a driver’s licence.
In response, the appellant contends that although there are differences between his circumstances and those in Muldrock, it is a question of degree and those differences ought not to eclipse the fact that he was ultimately labouring under an intellectual disability, which ought to have been taken into account in sentencing him.

Discussion

When considering the appellant’s personal circumstances, the judge accepted that the appellant had had learning difficulties all his life, that he had a reported full scale IQ of 74 and that his intellectual function was ‘at the cusp of the disability range’ according to Ms Dluzniak. He recorded that both Ms Dluzniak and Mr Candlish considered that the appellant did not meet the criteria for major mental illness and that Ms Cidoni had opined that the appellant had low average intellectual capacity, but no signs of a learning or cognitive disability.
Under this general heading, the judge also noted that Mr Candlish had tested for risk of sexual recidivism and found that the appellant was an ‘average risk’ on testing, but as he had not reoffended since 2015, he in fact fell into the ‘low risk’ category. For her part, Ms Cidoni had diagnosed the appellant with paedophilic disorder.
The judge separately considered the appellant’s moral culpability under the heading, ‘Verdins’, recording that the appellant’s counsel had submitted that limbs 1–4 of Verdins applied both because of the appellant’s ‘cognitive deficits’ and his diagnosis of paedophilic disorder. The judge set out the principles in Verdins, including the need for there to be a causal connection between the impairment to mental functioning and the offending.
When considering the application of Verdins principles to the appellant’s cognitive deficits, the judge again recorded Ms Dluzniak’s conclusion that the appellant had ‘borderline intellectual function’ and ‘social and emotional immaturity’, a full scale IQ of 74 and the reading ability of a fifth grader. As discussed, the judge also recorded that Ms Cidoni had concluded, on the basis of what she described as ‘limited testing’, that the appellant had ‘low average intellectual capacity’ but ‘no signs of cognitive or learning disability’.
Notwithstanding Ms Cidoni’s conclusion, the judge accepted that the appellant had ‘a significant intellectual deficiency’. He said:
In light of this evidence, while I accept that you have a significant intellectual deficiency, there is little if any evidence before the court linking it to the cause of your offending.[39]
[39]Sentencing Reasons, [75].
In relation to whether the paedophilic disorder attracted Verdins principles, the judge said:
In any event, the evidence before the court does not demonstrate that any impairment from which you suffered at the time of your offending materially diminished your capacity to reason appropriately at the time of the offence concerning the wrongfulness of your offending. In fact, Ms Cidoni, who examined you for this plea hearing expressly states that your paedophilic disorder ‘does not meet the criteria for Verdins’.[40]
Further, the evidence suggests you were aware of the wrongfulness of the relationship. For example, at an early stage of the relationship, you prevailed upon BM to lie to her father about having a sore leg as an explanation for giving her a lift home.[41]
[40]Ibid [82].
[41]Ibid [83].
We infer from this pathway of reasoning that the judge declined to mitigate the appellant’s moral culpability in light of his ‘significant intellectual deficiency’ because no distinct causal connection between his intellectual deficiency and the offending had been established by the expert evidence.
However, in the conclusion to his sentencing remarks, when applying the whole of the relevant sentencing principles, the judge stated broadly:
For the reasons I have set out earlier, I consider yours to be quite egregious examples of what are serious offences. Your moral culpability, although reduced to some extent by your youth and cognitive disability, is high. You have shown no remorse and your trial was run on the basis that BM was lying about all of your offending.[42]
[42]Ibid [103].
In the final analysis, it appears that the judge was prepared to treat the appellant’s moral culpability as somewhat reduced by his youth and cognitive disability. Nonetheless, it remained ‘high’. That is consistent with his Honour’s earlier finding that there was no causal relationship between his disability and the offending.
The High Court of Australia considered the question of causal connection in the context of a mentally retarded offender in Muldrock. The Court explained:
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.[43]
[43]Muldrock (2011) 244 CLR 120, 139 [54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Muldrock, like the appellant, had sexually offended against a child. It was not the first time he had done so. In the District Court of New South Wales, Muldrock relied on reports that had been prepared in connection with proceedings for the earlier offending in 2000. Dr Muir, a psychiatrist to whom Muldrock had been referred for treatment, concluded that he was ‘undoubtedly mentally retarded’. Dr Muir recorded that Muldrock had been placed in special classes throughout his school career, could barely read or write, and was only able to tell the time using a digital watch. In addition, he had been sexually abused himself at the age of 10 by an adult. His retarded development was the cause of his difficulty in managing his impulses and managing his actions.
Ms Daniels, a clinical psychologist, assessed Muldrock’s performance IQ as within the category of mentally retarded and his full scale IQ as within the borderline range. She considered that his ‘maladaptive sexual behaviour’ was the manifestation of his own childhood sexual abuse and his mental retardation. In her view, Muldrock had little control over his ‘acting out behaviour’.
Muldrock was assessed by another psychologist, Professor Hayes, in connection with the offending in question. Professor Hayes reported that Muldrock’s IQ composite standard score of 62 was indicative of a ‘mild’ intellectual disability. He functioned at a level lower than 99 per cent of the population and his receptive and expressive language was equivalent to that of a child aged five‑and‑a‑half years. He functioned in the lowest 0.1 per cent of the population in terms of his adaptive behaviour. Professor Hayes also observed that Muldrock had deficits in empathy.
The District Court judge sentenced Muldrock to a high head sentence but a very low non-parole period. The latter was the subject of an appeal by the Crown. For his part, Muldrock appealed the high head sentence that was imposed. The Court of Criminal Appeal allowed the Crown appeal on the basis that the finding that Muldrock was ‘significantly intellectually disabled’ was not justified by the evidence of his ‘mild’ intellectual disability. Furthermore, the Court found, the evidence clearly established that Muldrock knew that what he had done was wrong. It dramatically increased the non-parole period and dismissed Muldrock’s appeal against the high head sentence.
The High Court held that in determining the (new) non-parole period, the Court of Criminal Appeal had not taken sufficient account of Muldrock’s intellectual disability.[44] The Court had not appreciated what was meant by ‘mild’ intellectual disability. The fact that Muldrock had engaged in some paid employment and held a driver’s licence did not detract from the assessment of his retardation.[45] The evidence was that he had ‘enormous difficulty with employment’.[46] Furthermore, Dr Muir’s assessment that Muldrock understood the wrongfulness of his conduct in respect of the earlier offence was qualified by the observation that this was ‘only a superficial awareness’.[47] The High Court concluded that the finding of the District Court judge that Muldrock’s intellectual disability was ‘significant’, was apt.[48]
[44]Ibid 139–40 [56]–[58] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[45]Ibid 138 [51].
[46]Ibid.
[47]Ibid 138 [52].
[48]Ibid 138 [53].
Referring to principles articulated by the Victorian Court of Criminal Appeal in R v Mooney,[49] the High Court concluded that the fact that Muldrock possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending.[50]
[49](Court of Criminal Appeal (Vic), Young CJ, Lush and Jenkinson JJ, 21 June 1978).
[50]Muldrock (2011) 244 CLR 120, 139 [54]–[55] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (citations omitted).
Muldrock was applied by this Court in Stevens, where Priest and Kennedy JJA said:
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.[51]
Moreover, in the case of an intellectually disabled offender, general and specific deterrence may — depending upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender — be moderated or eliminated as sentencing considerations.[52]
[51]Stevens [2021] VSCA 218, [31] (emphases in original) (citations omitted).
[52]Ibid [32] (citations omitted).
In Stevens, the offender pleaded guilty to aggravated burglary and related offending. He was found to have ‘extremely low intellectual function, in the impaired range’ with an IQ of 60.[53] The principles in Bugmy v The Queen[54] also came into play due to his severely deprived background. The Court found that Stevens’ circumstances bore a deal of similarity with those of Muldrock and accepted that, while his offending showed at least rudimentary forethought, Stevens had difficulties making sound judgments, thinking clearly and logically, and in ‘connecting actions with consequences’.[55] It was therefore necessary to give ‘full weight’ to his intellectual disability and deprived background, and the failure of the court below to do so constituted error. The Court held that due to his intellectual disability, Stevens’ moral culpability was reduced; that general deterrence had to be sensibly moderated; and that curial denunciation had a lesser role to play in sentencing him.[56]
[53]Ibid [29].
[54](2013) 249 CLR 571.
[55]Stevens [2021] VSCA 218, [36] (Priest and Kennedy JJA).
[56]Ibid [37].
In this case, the appellant’s intellectual disability is of a kind similar to those of Stevens and Muldrock, but less severe. He has a higher IQ and has been able to lead a relatively normal life — in that he was able attend school, complete a vocational course and get a job — although not without significant challenges. The letter from the appellant’s mother illustrates, graphically, the difficulties he has faced due to his disability. Ms Dluzniak’s assessment revealed his intellectual function to be worse than 96 per cent of other individuals his age in the wider community, and it was her view that it would likely require him to have some degree of lifelong support in managing more complex activities of daily living. She found that he had a marked degree of concreteness in his thought processes and limited ability to engage in consequential thinking and understand cause-and-effect relationships. In her opinion, the appellant was socially and emotionally immature relative to his chronological age.
In our view, it is clear from the evidence that, like Stevens and Muldrock, the appellant has difficulties making sound judgments, thinking clearly and logically, and in connecting actions with consequences. While he appears to understand that his actions were wrong, his capacity to reason as to that wrongfulness must be seen to be compromised. His moral culpability for the offending was necessarily reduced as a consequence.
Having dismissed the appellant’s intellectual disability as a relevant consideration under Verdins, the judge’s sole consideration of the effect of the appellant’s intellectual disability on his moral culpability is set out in paragraph 103 of the sentencing remarks, reproduced at [37] above. The appellant’s moral culpability is simply said to be reduced ‘to some extent’ by a package comprised of his youth and cognitive disability.
As we have noted, the sentencing judge was not assisted by submissions based on Muldrock or Stevens. None the less, we consider the brief treatment described above to be insufficient in the circumstances. It was necessary to give specific consideration to the appellant’s intellectual deficits, whether or not the evidence established a distinct causal pathway to the offending, as is usually required for the application of Verdins principles. There was evidence from which it could be reasonably inferred that the appellant’s appreciation of the wrongfulness of his actions was affected by his compromised capacity to reason and by his relative immaturity vis a vis his peers, and his culpability for the offending was correspondingly reduced. While the appellant’s incapacity did not rise to the level of Muldrock’s or Stevens’, it had to be factored into the sentencing synthesis in a meaningful way.
Moreover, it does not appear that any consideration was given to the need to moderate general deterrence, just punishment and denunciation in light of the appellant’s intellectual disability.
This omission constitutes specific error in the sentencing exercise. The sentence must be set aside and the appellant re-sentenced.

Resentencing

The appellant has a significant intellectual disability that impairs his ability to reason as a normal person would. The existence of this disability reduces — but does not eliminate — his moral culpability and makes him a less suitable vehicle for general deterrence, punishment and denunciation. Specific deterrence is not a significant consideration given the appellant has not offended since 2015.

That said, the appellant’s offending was serious, and he did have some understanding that it was so. The complainant was only 12 years’ old when she was offended against; there was a significant age gap between the appellant and the complainant; and the offending took place over a number of months and occurred on seven separate occasions. Even though there was no violence or coercion until the final offence (rape), there is a presumption that BM was harmed by all the offending.
In addition, the appellant does not have the benefit of a guilty plea and has been found to have shown no remorse.
Furthermore, pt 2A of the Sentencing Act 1991 applies, and the appellant stands to be sentenced as a serious sexual offender on charges 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17. This means, relevantly, that:
(a)the Court must regard protection of the community as the ‘principal purpose’ for which sentence is imposed;[57]
(b)every sentence imposed in respect of the remaining offences must, unless we direct otherwise, be served cumulatively on any other uncompleted sentence;[58] and
(c)it must be entered in the records of the court that the appellant has been sentenced as a serious offender.[59]
[57]Sentencing Act 1991, s 6D(a).
[58]Sentencing Act 1991, s 6E.
[59]Sentencing Act 1991, s 6F.
Notwithstanding his paedophilic disorder, we do not consider that the appellant presents a risk to the community. He has not offended since 2015.
As to cumulation, while cognisant of the requirements of pt 2A of the Sentencing Act, we consider that cumulation must be moderated in this case, given that the 15 charges relate to a limited number of events and having regard to the ongoing nature of the relationship between the appellant and BM at the relevant time.
Taking into account the factors considered by the judge, along with the appellant’s youth at the time of the offending and his intellectual disability, we would allow the appeal, set aside the sentences imposed in the County Court, and re-sentence the appellant as follows:
(a)Charge 1 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(b)Charge 2 (indecent act with a child under 16) — 1 year 6 months’ imprisonment;
(c)Charge 3 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(d)Charge 4 (indecent act with a child under 16) — 1 year 3 months’ imprisonment;
(e)Charge 5 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(f)Charge 7 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(g)Charge 8 (indecent act with a child under 16) — 1 year 3 months’ imprisonment;
(h)Charge 9 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(i)Charge 10 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(j)Charge 11 (indecent act with a child under 16) — 1 year 3 months’ imprisonment;
(k)Charge 12 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(l)Charge 13 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(m)Charge 14 (sexual penetration of a child under 16) — 2 years’ imprisonment;
(n)Charge 15 (sexual penetration of a child under 16) — 2 years’ imprisonment; and
(o)Charge 17 (rape) — 5 years 6 months’ imprisonment.
Charge 17 is the base sentence. Three months of the sentences imposed on each of charges 1, 3, 7, 10, 13 and 14 be served cumulatively upon charge 17 and upon each other; the sentences imposed on charges 2, 4, 5, 8, 9, 11, 12 and 15 be served concurrently upon charge 17.
The appellant is therefore sentenced to a total effective sentence of 7 years’ imprisonment, with a non-parole period of 4 years and 9 months.
The appellant is sentenced as a serious sexual offender in respect of charges 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 pursuant to s 6F of the Sentencing Act 1991 and reporting obligations are imposed on the appellant for life pursuant to s 34 of the Sex Offenders Registration Act 2004.

Ground 2 — Manifest excess

In the circumstances, it is unnecessary to consider ground 2.

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[2024] VSCA 82

30 April 2024