Clifton v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0013

DANIEL CLIFTON	Applicant
v
THE KING	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	MACAULAY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2023
DATE OF JUDGMENT:	22 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 232
JUDGMENT APPEALED FROM:	DPP v Daniel Clifton (Unreported, County Court of Victoria, Judge Rozen, 10 November 2022)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of 15 sexual offences against child under 16 – Total effective sentence of 8 years 10 months, non-parole period of 5 years 10 months – Applicant has intellectual disability – Whether error in failure to apply principles in Muldrock v The Queen – Whether sentence manifestly excessive – Leave to appeal sentence granted.

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Counsel
Applicant:	Mr C Terry
Respondent:	Ms M Mahady
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA:

The applicant was convicted by jury verdict in the County Court on 15 August 2022 of one count of rape, 10 counts of sexual penetration of a child under 16 years, and four counts of committing an indecent act with a child under the age of 16. Following a plea in mitigation on 14 October 2022 he was sentenced on 23 November 2022 to a total effective sentence of 8 years and 10 months’ imprisonment, to serve a period of 5 years and 10 months before being eligible for parole. These reasons concern his application for leave to appeal against sentence.[1]
[1]This application is determined by a single judge pursuant to s 315 of the Criminal Procedure Act 2009. An extension of time within which to file the application for leave to appeal was granted on 18 April 2023.
The full details of the sentence is as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment L12535906
1	Sexual penetration of a child under 16[2]	10 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
2	Indecent act with a child under 16[3]	10 years’ imprisonment	2 years’ imprisonment	2 months
3	Sexual penetration of a child under 16[4]	10 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
4	Indecent act with a child under 16[5]	10 years’ imprisonment	1 year and 6 months’ imprisonment	2 months
5	Sexual penetration of a child under 16[6]	10 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
7	Sexual penetration of a child under 16[7]	10 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
8	Indecent act with a child under 16[8]	10 years’ imprisonment	1 year and 6 months’ imprisonment	2 months
9	Sexual penetration of a child under 16[9]	10 years’ imprisonment	3 years’ imprisonment	3 months
10	Sexual penetration of a child under 16[10]	10 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
11	Indecent act with a child under 16[11]	10 years’ imprisonment	1 year and 6 months’ imprisonment	2 months
12	Sexual penetration of a child under 16[12]	10 years’ imprisonment	3 years’ imprisonment	3 months
13	Sexual penetration of a child under 16[13]	10 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
14	Sexual penetration of a child under 16[14]	10 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
15	Sexual penetration of a child under 16[15]	10 years’ imprisonment	3 years’ imprisonment	3 months
17	Rape[16]	25 years’ imprisonment	5 years and 8 months’ imprisonment	Base

[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.

Total Effective Sentence	8 years 10 months’ imprisonment
Non-Parole Period:	5 years 10 months

Orders were made declaring 87 days of the period of imprisonment having already been served, and that the applicant was sentenced as a serious sexual offender in respect of charges 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 17.[17]
[17]Sentencing Act 1991, s 6F.
The applicant initially proposed to appeal his sentence on two grounds. On the oral hearing, he abandoned reliance upon the first ground and, with leave, substituted a particular of his second ground.[18] Without setting out the particulars in full, the remaining proposed ground was that the head sentence, cumulation, minimum term and total effective sentence were all manifestly excessive in that the trial judge failed to accord any or any due weight to the applicant’s mental impairment, absence of prior convictions, lack of a position of trust and low risk of recidivism, and failed to properly assess the objective gravity of the offending.[19]
[18]Counsel appearing for the applicant abandoned the first ground which had been formulated as ‘The learned trial judge misapplied the principles laid down in Clarkson’s Case to the facts of this matter’. Instead, he substituted, as the fifth particular of the second proposed ground, which contended that the sentence was manifestly excessive, a particular that ‘the judge failed to properly assess the objective gravity of the offending’.
[19]See the full terms of the particulars relied upon at [29] below.

Summary of offending

The applicant was born on 17 June 1995 and was between 18 and 19 years of age during the period of offending. At that time, he lived with his parents and an older brother in Lara, near Geelong. The complainant, BM, was born in 2003 and was 12 years of age during the period of offending. She lived with her father and two older siblings in another suburb of Geelong.
Since the age of five, BM had been taken rollerblading by her father at a ‘Rollerway’ roller skating centre in Geelong. By the time she was about 10 years of age, her father would take her roller skating every Friday and Saturday night. 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 drop her off at 7:30 pm and pick her up at 10:30 pm.
The applicant also attended this skating centre. He was older, drove a car and was one of the better skaters. BM gradually developed a crush on him.
Sometime in late 2014, BM’s father began to work in the evenings and was no longer able to collect her from Rollerway. It was in these circumstances that the applicant offered to pick her up from her home and drop her back home after skating. On the first occasion the applicant drove BM home from Rollerway, he parked his car several houses away from BM’s house. While in the car he hugged her. When BM’s sister came out onto the street and saw them, she confronted the applicant who said that BM had injured her leg skating. At his prompting, BM pretended to have a limp. BM’s sister accepted the fabricated story. Thereafter, the applicant — 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.
This forms the background to the offending which occurred over a period of 12 months between February 2014 and February 2015. The charges related to seven specific incidents although it was also alleged that the applicant engaged in other sexual activity with BM which was not subject of a charge. The judge summarised the incidents of offending in the following terms:[20]
[20]DPP v Daniel Clifton (Unreported, County Court of Victoria, Judge Rozen, 10 November 2022) (‘Reasons for Sentence’), [13]–[31].
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 this 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).
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.
In around 2016, BM disclosed to her father that the applicant had forced her to perform oral sex upon him. For various reasons, no complaint was made to police at that stage. In November 2019, BM made a report to police. In January 2020 BM contacted the applicant and asked for the return of the jewellery that he had given to her, despite her returning the gifts to him after the seventh incident. They met and he did so. At around this time the applicant apologised to BM for past verbal arguments but not for any sexual offending.
In a record of interview conducted at the Geelong Police Station on 8 June 2020, the applicant admitted that he knew BM and that he had driven her home from Rollerway on occasions. He denied all of the charged offending, that BM had ever visited his house in Lara, or buying her any gifts.

Plea hearing

Relevantly to the proposed ground of appeal, a number of medical and psychological reports were tendered on the hearing of the plea in respect of the applicant. They were, in date order:
(a)Kathryn Barker, Psychologist, Catholic Education Office: Confidential Recommendations and Results Summary of Cognitive Assessment, dated 5/11/2003 and 13/11/2003;
(b)Dr Chris Cooper, Paediatrician, letter to Dr Usha Shah, dated 6/09/2006;
(c)Dr Chris Cooper, letter to Dr Swati Mitra, dated 31/05/2009;
(d)Dr Chris Cooper, letter to no specific addressee, dated 29/11/2009;
(e)Glenn Chuck, Psychologist, Intellectual Disability Assessment Report, dated 9/04/2010;
(f)Simon Candlish, psychologist, Psychological Court Report, dated 15/08/2021;
(g)Debra Smith, psychologist, letter to no specific addressee, dated 16/08/2021;
(h)Amy Dluzniak, neuropsychologist, Confidential Neuropsychological Assessment Report, dated 3/09/2021; and
(i)Gina Cidoni, psychologist, Psychological Assessment Report, dated 6/10/2022.
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 is 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 an 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.[21] 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.
[21]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).

Sentencing reasons

The sentencing judge outlined the offending in the manner described above.
He accepted the prosecution submission that charge 17 represented a mid-range example of the very serious crime of rape. He rejected the applicant’s counsel submission that the objective seriousness of the other offending was only ‘mid-range’. The judge considered that applicant’s case moral culpability for his offending was high in particular because:
(a)BM was at primary school and 12 years old;
(b)there was a significant age gap between the applicant and BM, and he had had previous sexual relationships;
(c)the applicant knew that what he was doing was very wrong;
(d)there was a ‘clear breach of trust’, due to the fact that the applicant knew that BM had a crush on him and admired him, he had a particular status through owning a car and, as he also knew, she had become dependent on him to get to and from Rollerway;
(e)the offending spanned 12 months, occurred on seven separate occasions and only ended at BM’s instigation when the applicant raped her.

Despite there being no victim impact statement from the complainant, the judge noted the presumption of harm in the case of sexual offending with children.
The judge then referred to the applicant’s family background, education and employment experience. In summary, he had a turbulent relationship with his father who he described as an ‘abusive drunk’. His parents separated he was in Year 8 but his father returned when he was in Year 10. In 2018, he moved in with his aunt to escape his father’s abusive behaviour, but by then he had become involved with drugs and she asked him to leave. He had learning disabilities during childhood and was placed at a school for specialised support in Year 8. He completed Year 11 at that school before commencing a spray painting apprenticeship which he completed in six years. He experienced abusive employers impatient with his learning difficulties until obtaining employment with his most recent employer, Timber Trust, who had been more supportive of him.
Next the judge reviewed the psychological evidence and reports. He noted his Full Scale IQ of 74 and that he had an intellectual function which was ‘at the cusp of the intellectual disability range’. He referred to Ms Dluzniak’s opinion that there no clear evidence of significant mental health concerns and that he did not appear to meet the criteria for major mental illness. He referred to Mr Candlish’s opinion that, because the applicant had not reoffended since 2015, he fell into the low risk category for sexual offending. Finally, he referred to Ms Cidoni’s opinion who diagnosed the applicant with paedophilia disorder, and to her view that he was on the edge of a diagnosis of depression and anxiety which would ‘no doubt’ intensify in a prison setting.
Against this background, the judge considered submissions from counsel as to the application of the principles in Verdins. In conclusion, whilst accepting that the applicant had a significant intellectual deficiency, the judge did not find any evidence linking that to the cause of his offending. The judge considered whether the diagnosis of paedophilia disorder constituted a mental impairment for the purposes of the Verdins principles. In the end, he did not reach a concluded view as he was not satisfied, in any event, that the applicant suffered from any impairment that materially diminished his capacity to reason appropriately at the time of the offence concerning the wrongfulness of his offending. To the contrary, he found the evidence suggested that the applicant was aware of the wrongfulness of the relationship. In the judge’s view, the applicant’s condition did not make the full application of the principles of general deterrence ‘repugnant to the underlying sense of humanity which guides proper sentencing.’[22]
[22]Citing DPP v O’Neill (2015) 47 VR 395, [59] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.
Nonetheless, based upon Ms Cidoni’s opinion of that the applicant’s mental health problems would intensify in a prison setting, the judge found that the fifth limb of Verdins was engaged.[23]
[23]The fifth limb of Verdins recognises that impaired mental functioning is relevant to sentencing in that the existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that given sentence would weigh more heavily on the offender than it would on a person in normal health.
The judge found the applicant’s prospects of rehabilitation to be reasonable, although he also noted that the applicant had not accepted responsibility for his offending.
The judge also considered a number of cases which counsel had submitted provided some guidance as to the appropriate sentence range for a matter like this.
In conclusion, the judge sentenced the applicant on the basis that the offences were ‘quite egregious examples of… serious offences’; the applicant’s moral culpability, although ‘reduced to some extent by [his] youth and cognitive disability’, was ‘high’; and the applicant had shown no remorse.

Proposed ground 1

The applicant’s final submission, as refined in oral argument, was that the head sentence, orders for cumulation, non-parole period and total effective sentence were manifestly excessive having regard to:
(1)the applicant’s mental impairment;
(2)his absence of prior convictions;
(3)the fact that he did not hold the position of trust with BM, but one of status in that he owned a car;
(4)his low risk of recidivism; and
(5)and a proper assessment of the gravity of his offending.
Whilst adhering to the argument that all of the sentences, the orders of cumulation and the total effective sentence were excessive, in oral submissions the applicant particularly focused on the sentence for charge 17 (rape) and the orders for cumulation. Counsel noted that the orders for cumulation on each of the other 14 offences added 3 years and 2 months to an already significant base sentence of 5 years and 8 months for rape. When account was taken of the five factors particularised in this ground, it was submitted that this resulted in a manifestly excessive total effective sentence.
Referring to the first particular, in oral submissions the applicant eschewed the way in which this point was put in written submissions which focused upon the paedophilic disorder. Instead, counsel focused upon the evidence of the applicant’s mild intellectual disability. More particularly, counsel targeted those parts of the judge’s reasons where he considered whether there should be any reduction in the applicant’s moral culpability by virtue of his impairment to mental functioning. In particular, he referred to the judge’s statement that, ‘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’.[24]
[24]Reasons for Sentence, [75].
Counsel argued that requiring evidence (or precise evidence) of a causal connection between an intellectual disability and the offending runs contrary to the principle enunciated in the High Court in Muldrock v The Queen (‘Muldrock’),[25] recently applied by this Court in Stevens v The Queen.[26] Relying on those principles, the applicant submitted that an intellectual disability is always relevant to sentencing: it may impact levels of moral culpability and ameliorate the weight to be accorded to general deterrence. Moreover, for those favourable impacts to apply in respect of a person with an intellectual disability, it is not necessary to establish the same causal nexus between the offending and mental impairment as may be required for other forms of mental impairment.
[25](2011) 244 CLR 120, [50]–[54] (the Court); [2011] HCA 39.
[26][2021] VSCA 218, [30]–[33] (Priest and Kennedy JJA).
Having refocused the applicant’s submission on this particular of the manifest excess argument, counsel foreshadowed that it may need to be isolated as a ground of specific error should leave to appeal be granted and, if necessary, sought leave to do so.
Addressing the other particulars of the ground of manifest excess, the applicant submitted that the absence of prior convictions, and the fact that there had been no reoffending in the eight years between the subject offences and the sentencing, were both significant mitigatory factors. Together, they were a good indication that the risk of reoffending was low. As the judge found, the applicant had reasonable prospects of rehabilitation. Counsel submitted that the full force of all of these features was not adequately reflected in the sentences imposed.
The applicant also submitted that the judge put too much weight on what was characterised as a breach of trust. He submitted that the applicant’s conduct was better viewed as an assumption of some level of authority toward BM, distinguishable from other more egregious forms of breach of trust.
In relation to the assessment of the gravity of the offending, the applicant submitted that the age difference between the applicant and BM — whilst certainly a six year age gap — was not as significant as the judge had characterised it. Furthermore, whilst the applicant was six years older than the victim, the psychological evidence showed that he was socially, emotionally and developmentally younger than his chronological age.
In response to these submissions, the respondent addressed the applicant’s new argument based upon the principle in Muldrock. The respondent pointed the judge’s finding that the applicant indeed did understand that his conduct was wrong. That finding, the respondent submitted, directly addressed the rationale for any special approach to persons with intellectual disability — that is, that a mentally retarded or intellectually disabled offender will have a reduced capacity to reason, as a person without that disability might, as to the wrongfulness of the conduct. It is that consequence of the intellectual disability that explains the lessening of the offender’s moral culpability and the view that the offender is not an appropriate medium for making an example to others. Moreover, the respondent submitted, the judge did afford some reduction in the assessment of the applicant’s moral culpability because of his ‘youth and cognitive disability.’
As for the argument on the age gap, the respondent emphasised that it was not just the gap in the number of years but also the gap in level of maturity and experience that was important, notwithstanding the applicant’s cognitive difficulties. Unlike BM, he had previous sexual relationships, was in the workforce, and drove a car.
The respondent argued the sentencing judge was correct to find that there is a breach of trust to respect to BM that facilitated the offence. The respondent emphasised the victim’s dependency on the applicant to get to and from Rollerway, her crush on him, the gifts he had given her and her belief that they were in a serious emotional relationship.
Each of the other matters contended by the applicant, the respondent submitted, had been properly taken into account by the judge and were all reflected in the sentence.
The respondent concluded by submitting that the applicant fell to be sentenced after a trial during which the victim was cross-examined on the basis that she was lying about the offending. The applicant had demonstrated no remorse and refused to acknowledge the offending. The respondent submitted that, in all the circumstances, the individual sentences, orders for cumulation, total effective sentence and non-parole period were plainly within the range of sentences open.

Analysis

As is frequently stated, an appeal against sentence on the basis of manifest excess or inadequacy requires ‘stringent proofs’.[27] It is not enough that the appellate court would have imposed a different sentence. Rather, the sentence being considered must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[28] In the absence of specific error, the sentence being considered must on its face reveal underlying error. This is no easy task.[29]
[27]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[28]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
[29]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
The offending in this case was very serious. It occurred over a substantial period of time. Significant harm can be presumed to the victim. The applicant cannot avail himself of the benefit of any sentence discount ordinarily extended to a person who pleads guilty. He has shown no remorse. He fell to be sentenced for many of his offences as a serious sexual offender with a presumption that individual sentences be served cumulatively.[30]
[30]Sentencing Act 1991, s 6E.
That said, the applicant is a first time offender with no prior convictions and had not reoffended in the eight years between the subject offending in his sentence. He had good prospects of rehabilitation. He had a longstanding and well-documented intellectual disability which may engage the principles in Muldrock. In my view, careful consideration needs to be given to the applicant’s diagnosis, the views of the psychologists about his various limitations in capacity, and the potential application of those principles in the sentencing exercise. It appears that the judge did not consider Muldrock, possibly because it was not argued that way on the plea.
Although, chronologically, the applicant was six years older than BM, there is material to suggest that the age gap may not have been as significant as the judge characterised it.
The individual sentence on the rape charge — undoubtedly a very serious offence — and the numerous orders for cumulation have, together, resulted in a term of imprisonment of significant duration.
I would give the applicant leave to amend ground 1 by substituting for the present ground a new ground — to be formulated by the applicant — which in substance alleges a specific error for a failure to apply the principles in Muldrock in the face of the applicant’s diagnosed intellectual disability. I also give leave to amend ground 2 to substitute, as the fifth particular, the words ‘a proper assessment of the gravity of his offending’. With those amendments,[31] leave to appeal will be granted on both grounds.
[31]As for the power to amend, see Matamata v The Queen [2021] VSCA 253, [51] (Kyrou and McLeish JJA).
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[2023] VSCA 232

22 September 2023