Gray (a pseudonym) v The Queen
[2018] VSCA 163
•26 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0156
| TOM GRAY (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, BEACH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 June 2018 |
| DATE OF JUDGMENT: | 26 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 163 |
| JUDGMENT APPEALED FROM: | DPP v [Gray] (Unreported, County Court of Victoria, Judge Hannan, 18 May 2016) |
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CRIMINAL LAW – Appeal – Sentence – Application for extension of time to appeal against sentence – Applicant convicted of abduction, false imprisonment, multiple charges of rape and associated offences – Delay of 13 months not satisfactorily explained – Appeal having no prospects of success – Application for extension of time refused – Criminal Procedure Act 2009 s 313 – Madafferi v The Queen [2017] VSCA 302 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue O’Brien George |
| For the Respondent | Ms K Judd QC, DPP with Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
NIALL JA:
Introduction
The applicant, who holds a doctoral degree in quantum physics, is a man of superior intellectual capacities. His full scale IQ places him within the ‘superior range’ (95th percentile). Notwithstanding his intellect, however, in mid-2015 he committed a truly monstrous crime.
Thus, on a Wednesday in mid-2015, shortly after 2:00 pm, the applicant snatched his victim — a young woman of 18 years who had gone out for a recreational run — from a road situated in a rural city. He knocked her to the ground, trussed her up with cord, blindfolded her, threw her into the back of his car and drove her away. Throughout that day and the next, the applicant subjected the victim to a multitude of sexually motivated acts — permeated by gratuitous sadism, cruelty and violence — of almost unimaginable depravity. Indeed, the applicant’s horrific offending is, in the collective experience of the members of the Court, of an order of deviancy and degeneracy not matched in any previous case that we have encountered. The offending is so disturbing that we will not summarise it. We think it enough to observe that it is described in detail in the sentencing judge’s very thorough reasons for sentence.[2]
[2]DPP v [Gray] (Unreported, County Court of Victoria, Judge Hannan, 18 May 2016), [9]–[72] (‘Reasons’).
On 9 May 2016, the applicant pleaded guilty in the County Court to abduction; false imprisonment; rape (ten charges); rape by compelling sexual penetration; sexual assault (four charges); sexual assault by compelling sexual touching; common assault (nine charges); and a summary charge of threatening to distribute an intimate image.
Following a plea, on 18 May 2016 a judge sentenced the applicant to a total effective sentence of 19 years’ imprisonment, with a non-parole period of 15 years, according to the following table:
Charge
Offence
Sentence
Cumulation
1
Abduction[3]
5 years
2
False Imprisonment[4]
5 years
12 months
3
Rape[5]
4 years
6 months
4
Rape
4 years
5
Common Assault[6]
18 months
6
Rape
6 years
8 months
7
Rape by Compelling Sexual Penetration[7]
6 years
8 months
8
Rape
10 years
12 months
9
Common Assault
2 years
10
Common Assault
12 months
11
Common Assault
10 months
12
Common Assault
6 months
13
Common Assault
6 months
14
Rape
10 years
18 months
15
Sexual Assault[8]
5 years
16
Sexual Assault
5 years
17
Sexual Assault
18 months
18
Sexual Assault
2 years
19
Common Assault
2 years
20
Rape
6 years
8 months
21
Sexual Assault by Compelling Sexual Touching[9]
3 years
22
Rape
11 years
Base
23
Common Assault
2 years
24
Rape
8 years
6 months
25
Rape
10 years
18 months
26
Common Assault
1 year
27
Rape
5 years
Summary Offence
Threat to Distribute Intimate Image[10]
6 months
Total Effective Sentence
19 years’ imprisonment
Non Parole Period
15 years
Pre-sentence detention
293 days
Section 6AAA declaration
24 years’ imprisonment with a non-parole period of 19 years
Sex offender registration
15 years
[3]Crimes Act 1958, s 55(a). The maximum penalty is 10 years’ imprisonment.
[4]False imprisonment is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.
[6]Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is five years’ imprisonment.
[7]Crimes Act 1958, s 39(1). The maximum penalty is 25 years’ imprisonment.
[8]Crimes Act 1958, s 40(1). The maximum penalty is 10 years’ imprisonment.
[9]Crimes Act 1958, s 41(1). The maximum penalty is 10 years’ imprisonment.
[10]Summary Offences Act 1966, s 41DB. The maximum penalty is imprisonment for one year.
Pursuant to Part 2A of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender on charges 4, 6, 7, 8, 14, 15, 16, 17, 18, 20, 21, 22, 24, 25 and 27. Therefore, by virtue of s 6D of the Act, in determining the length of any sentence of imprisonment to be imposed on the applicant, the judge was required to regard the protection of the community from him as the principal purpose for which the sentence was imposed; and, in order to achieve that purpose, could impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.[11] Additionally, s 6E required that, unless — as she did — the judge otherwise ordered, every sentence of imprisonment imposed on the applicant for a relevant offence[12] was to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed.
[11]The judge determined, however, ‘that it is not necessary nor appropriate to achieve the protection of the community to impose a sentence longer than that which is proportionate to the gravity of each relevant offence, considered in light of its objective circumstances’.
[12]By virtue of s 6B(3), in the case of a serious sexual offender a ‘relevant offence’ is ‘a sexual offence or a violent offence’ (as to which, see respectively Schedule 1 and Schedule 2).
An application to extend time within which to apply for leave to appeal
In the ordinary course, any notice of application for leave to appeal against sentence should have been filed by 15 June 2016.[13] As it transpired, however, the applicant’s solicitors did not file an application for leave to appeal against sentence until 24 July 2017 (‘the notice’). Since the notice was more than a year out of time, the applicant sought an extension of time from the Registrar within which to file it.[14] That application was refused on 20 October 2017. Following the Registrar’s refusal, the applicant requested this Court to extend time.[15]
[13]Section 279(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against sentence to be filed ‘within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313’.
[14]By s 313(1) of the Criminal Procedure Act 2009, the Registrar of Criminal Appeals at any time may extend the time within which ‘a notice of appeal or notice of application for leave to appeal may be filed’.
[15]This course is permitted by s 313(2) of the Criminal Procedure Act 2009, which provides that if the Registrar refuses an application to extend time under subsection (1), ‘the applicant is entitled to have the Court of Appeal determine the application’.
The notice contains one ground, formulated as follows:
The sentencing judge erred in the application of the Verdins[[16]] principles by finding that ‘any reduction of moral culpability must be to a moderate degree’ (Reasons for Sentence at [138]) in circumstances where there was expert evidence that the applicant’s mental condition ‘significantly contributed’ to the nature, quality and extent of his offending.
[16]R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
In Madafferi, the Court discussed the principles guiding the exercise of the Court’s discretion to grant or refuse an extension of time:[17]
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[18] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[19] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[20] the length of the delay — and the reasons for it[21] — and the prospects of success should the extension be granted,[22] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[23] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[24] The discretion must, as we have said, be exercised according to the individual facts of each case.[25]
[17]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations in original).
[18]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).
[19]Ibid 707 [60].
[20]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[21]Ibid 614 [31].
[22]Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).
[23]Jopar (2013) 44 VR 695, 707 [60].
[24]Ibid.
[25]Ibid.
We have no hesitation in concluding that the instant application for extension of time must be refused. In our view, not only is the explanation for the delay in filing the notice unsatisfactory, but, more importantly, we think there to be no prospect that the putative appeal would succeed.
In an affidavit affirmed on 24 July 2017, the applicant’s current solicitor, Joshua Taaffe, endeavoured to assign reasons for the delay. Mr Taaffe deposed that, at his plea and sentence — which were in May 2016 — the applicant was represented by another firm of solicitors. In excess of a year later, on 19 June 2017, Mr Taaffe received the applicant’s instructions to act on his behalf. In the lead-up to receiving instructions, Mr Taaffe had first spoken to the applicant’s mother concerning a possible appeal against sentence on 3 June 2016 (responding to a telephone enquiry of 30 May 2016). The two then conferred in person in August 2016, the applicant’s mother being uncertain ‘as to whether an appeal had been commenced or not’ (albeit she ‘seemed to think that an appeal had been filed’).
At a further meeting on 23 January 2017, the applicant’s mother ‘requested a review of some of the materials in the case and advice about an appeal’. Mr Taaffe provided advice to the applicant’s parents accordingly at a meeting on 8 February 2017. More than three months elapsed until, on 18 May 2017, the applicant’s parents again met with Mr Taaffe, ‘raising further concerns’ about the applicant’s plea and sentence.
On 8 June 2017, having spoken to counsel, Mr Taaffe once again spoke to the applicant’s parents by telephone, and they advised him that the applicant wished to instruct him to lodge an appeal. Mr Taaffe confirmed that information in a meeting with the parents on 13 June 2017, and confirmed it in a video conference with the applicant the same day. Mr Taaffe deposed that he also briefed counsel that day.
Mr Taaffe deposed that he received a signed authority from the applicant on 19 June 2017. The next day, 20 June 2017, he spoke to the applicant’s former solicitor, who informed Mr Taaffe that he ‘believed the Applicant was so focused on the property disposal issue that he did not even seem to think about an appeal and that maybe this was related to his autism’. Those issues had ‘stretched on’ for six months following the sentence. A day later, further materials were collected from the former solicitors and provided to counsel.
For the purposes of preparing his affidavit, Mr Taaffe deposed, he spoke to the applicant on 17 July 2017. The applicant said that he had told his former solicitors that he ‘wished to appeal if it were possible’. Although he ‘received advice at various times’, the applicant ‘maintained to his parents and his lawyers that he wished to appeal if possible’. The applicant’s parents, Mr Taaffe deposed, ‘had difficulties instructing new lawyers with the confiscation and compensation proceedings continuing’. Mr Taaffe further deposed that the applicant’s matter ‘involved a plea hearing conducted over four days’, and there ‘were complex issues of a psychological nature to be dealt with in the plea and the seriousness of the offending alone made it a complex matter to deal with’.
On 18 July 2017, Mr Taaffe received a draft written case from counsel, which he discussed with the applicant in conference by video the next day.
Mr Taaffe stated that, upon ‘being instructed to act and placed in funds, the matter has been conducted expeditiously’. He said that the ‘long lapse between sentence and the filing of the appeal may be partially explained by the continuation of the property disposal and compensation application’. Mr Taaffe further suggested that the applicant’s ‘psychological limitations may also have contributed to the delay’, and that the applicant and his family ‘have found it difficult to obtain representatives willing to bring the appeal on his behalf’. The applicant, Mr Taaffe said, ‘always wished to appeal’. Counsel has, Mr Taaffe suggested, ‘identified a reasonably arguable ground of appeal and indicated that the appeal has merit’.
We also note that, prior to their instructions being withdrawn, the applicant’s former solicitors wrote two letters to the Registry, the first dated 14 June 2016, and the second dated 2 December 2016. In the first, the solicitors wrote:
We advise that our office has just been instructed to file an Application for Leave to Appeal against Sentence.
We are contacting the Court now to foreshadow that there will be an application and that it will not, unfortunately, be lodged within the standard 28 day period. We will, of course, endeavour to lodge the application as soon as practicable.
We will be required to have alternative Counsel draw those grounds of appeal.
And in the second, it was said:
We refer to our earlier letter to you dated 14 June 2016. In that letter, we foreshadowed that there will be an application for leave to appeal against sentence in the above matter.
We are writing on this occasion to notify you that there will shortly be such an application. The formal application for leave will be filed as soon as practicable.
We should note at this stage that there are reasons for the delay in applying for leave.
Firstly, our client, [the applicant], has been concerned, to the exclusion of any other legal matters, with issues relating to the forfeiture order on certain aspects of his property. This forfeiture order has now resolved and we expect a Court Order to be made in this regard within a week.
Secondly, we note that [the applicant] has Asperger’s Syndrome (or Autism Spectrum Disorder) and it is for this reason that he has been exclusively focused on the forfeiture order as indicated above. In this regard we note that [the applicant] has an extreme manifestation of Asperger’s Syndrome; according to Neuropsychologist, Professor Warrick Brewer, only 5% of those afflicted with Asperger’s syndrome have it more severely than [the applicant].
We will provide further information for the details about this when the formal application for leave is filed.
The reasons for the delay are unsatisfactory
From the foregoing it will be appreciated that, on 14 June 2016 — the day before the time limit of 28 days was to expire — the applicant’s former solicitors wrote to the Registry noting that they had been given instructions to file a notice of application for leave to appeal, and that they ‘will be required to have alternative Counsel draw those grounds of appeal’. No explanation was, however, forthcoming, as to why ‘alternative counsel’ needed to be briefed to draw appropriate grounds, or why alternative counsel had not been briefed (and appropriate grounds drawn) in a timely manner.
Thereafter, there was no communication with the Registry until almost six months later, when it was said that an application for leave to appeal ‘will shortly’ be filed. It was stated that the applicant had ‘been concerned, to the exclusion of any other legal matters, with issues relating to the forfeiture order on certain aspects of his property’, the suggested explanation for that exclusive focus being the applicant’s Asperger’s Syndrome (or Autism Spectrum Disorder). This explanation is, however, unconvincing. As far as we are able to see, there was no compelling reason why counsel could not have been briefed to draw grounds of appeal (and a written case) based on the available material, no matter that the applicant was concentrating on other aspects of his case. Based on experience, we would have thought that his input into such a process could only have been very limited. Indeed, we note in this regard that the written case on which the applicant now seeks to rely appears to be based solely on material which was available at the time that the impugned sentence was imposed.
Moreover, even assuming that the applicant might have had some input into the drafting (or approval) of grounds of appeal, we note that the applicant is, according to the report of the neuropsychologist, Associate Professor Warrick Brewer, dated 29 February 2016, ‘a man of superior intellectual capacity’ who, we further note, has managed to obtain a doctoral degree in quantum physics. We see nothing in the expert opinion that would lead us to the conclusion that the applicant was incapable of balancing more than one aspect relevant to his case, or of giving discrete instructions to seek leave to appeal, during the critical period.
Furthermore, there is no satisfactory explanation as to why it took a further six months from the last communication with the Registry (in early December 2016) for the applicant to provide instructions to his current solicitor (on 19 June 2017). Indeed, we reject the somewhat tentative suggestion that the applicant’s ‘psychological limitations may also have contributed to the delay’. We consider that it would not have been a particularly difficult or onerous task to brief appropriate counsel to draw grounds of appeal (and a written case) in or around June 2016, shortly after the sentence was imposed.
Not only do we regard the delay of 13 months to be without satisfactory explanation, but we consider that there has been material prejudice to the respondent occasioned by the delay. The applicant video and audio recorded much of his offending, the true horror of the outrage that he perpetrated against the victim being captured on discs. According to an affidavit sworn on behalf of the respondent on 15 September 2017, the video cameras used to make the recordings were destroyed on 16 December 2016, and the discs containing the recordings were destroyed on 30 March 2017. The respondent submits that the ‘recordings of the offending were the best evidence of the offending and conveyed the true nature of that offending’. Although, of course, this Court is able to make some judgment of the truly revolting nature of the offending from the written word, it cannot be gainsaid that the respondent has been deprived of the best evidence to demonstrate its objective seriousness.[26]
[26]Compare DPP (Cth) v Zarb (2014) 46 VR 832, 853–4 [73] (Priest JA).
In this regard, we note that the judge made the following observations in her reasons for sentence:[27]
I have seen the video of your offending on the second day. It is sickening and confronting. I was quite properly reminded by counsel of the need to guard against an emotional reaction such as would unbalance the sentencing process. I was referred to the caution required, as described by Court of Appeal President Winneke in R v DH.[28] I have been mindful, and I hope rigorous in this regard. That said, I think it is incumbent upon me to view what is the best evidence and to approach the sentencing task with a full understanding of the matters I am to sentence upon. The justice system must, in my view, be robust in this regard. The reality is stark but it informs in a way words cannot.
[27]Reasons, [72] (emphasis added).
[28]R v DH [2003] VSCA 220 (‘DH’).
DH was a case of incest, attempted incest and rape perpetrated by a father against his three step-daughters. He had video-taped some of the offending. On appeal, the Court viewed the video-tape disclosures, seemingly accepting the submission that ‘they uniquely represent the common brutality of the crime which cannot be replicated by oral evidence which is the customary form of describing a rape’. Winneke P explained:[29]
The major argument, eloquently presented by [counsel], was in respect of the ground which alleged manifest excess. The essence of the ground was that the total effective sentence of 18 years and the non-parole period fixed of 15 years, were manifestly excessive, and that — in particular — the sentences imposed on counts 6 to 11 inclusive …, being the offences of rape of the complainant K, (penile rapes orally, anally and vaginally and rapes anally and vaginally by means of a cucumber), were themselves excessive. In particular, it was contended, the term of 12 years imposed for the sentence on count 8 was beyond the range of sentence which could reasonably have been imposed. These latter counts represented offences committed on the one day against the appellant’s eldest step-daughter; and were offences which had been self-recorded on a video tape set up by the appellant. The recording of these offences on the video tape was a humiliating and aggravating feature of these crimes. [Counsel] submitted that this Court should steel itself against emotional reactions to the video tape disclosures because they uniquely represent the common brutality of the crime which cannot be replicated by oral evidence which is the customary form of describing a rape. Like the other judges of this Court, I viewed the video tape; and I share the views of the sentencing judge that the crimes committed against the eldest step-daughter on that day were not only humiliating, but were brutal and persisted in over a long period against the protestations of the victim. I agree with [counsel] that the pictorial representation of what the appellant was doing to his step-daughter is capable of exciting an over-reaction on the part of the sentencer; something which the learned sentencing judge (a judge of many years’ experience) had to be, and the judges of this Court need to be, careful to resist. Having said that, I can see nothing in the sentences imposed, either individually or as a total effective sentence, which would suggest to me that the sentencing judge has over-penalised these very serious crimes which represented gross breaches of trust and which have undoubtedly caused serious emotional trauma. …
[29]Ibid, [3].
Finally, as the authorities recognise, time limits exist for sound reasons, including the desirability of achieving finality with reasonable expedition. One reason for seeking to achieve finality with reasonable expedition is the alleviation of unnecessary suffering of victims. It would be a difficult enough matter for the victim — who, unsurprisingly, has been diagnosed with post-traumatic stress disorder — ever to recover from her ordeal, without having to endure the additional stress and anxiety accompanying further protraction of the process. Quite plainly, the interests of justice include the interests of the victims of crime. Given the absence of any satisfactory explanation for the delay, the interests of the victim in this case to an extent tend to tip the scales against the applicant.
The ground of appeal has no merit
But even were we of the view that the delay had been satisfactorily explained, we would still refuse an extension of time, since we think that the proposed ground of appeal is bereft of merit.
It will be remembered that the sole ground of appeal asserts that the sentencing judge erred in the application of Verdins principles by finding that ‘any reduction of moral culpability must be to a moderate degree’ in circumstances where there was expert evidence that the applicant’s mental condition ‘significantly contributed’ to the nature, quality and extent of his offending. Specific reference is made to the following paragraph of the reasons for sentence:[30]
Any reduction of moral culpability must be to a moderate degree and I have sentenced you on that basis. I have further moderated the usual effects of both general and specific deterrence to give effect to my findings in this regard, but both general and specific deterrence must still be given weight in the sentence I will impose this day. I must seek to deter, not only you, but others who would engage in like conduct. As I have said, the court and the community cannot tolerate offending which so seriously damages the lives of victims. Your sentence must manifest the community’s denunciation of your conduct and impose just punishment. I must seek to deter you from future offending and I must protect the community.
[30]Reasons, [138].
Evidence as to the applicant’s mental condition
On the plea, counsel for the applicant contended that the applicant’s mental condition at the time of the offending was compromised in a major way by two aspects — undiagnosed Asperger’s disorder and a ‘major psychological crisis’ — which were ‘significant contributors’ to his offending. In support of this submission, the applicant’s counsel tendered a number of reports that addressed the mental state of the applicant.
Associate Professor Andrew Carroll, a consultant forensic psychiatrist, in a report addressed to the applicant’s former solicitors, dated 31 December 2015, expressed the opinion that the applicant met the diagnostic criteria for Asperger’s disorder and for Autism Spectrum Disorder (which has ‘subsumed’ Asperger’s disorder in the relevant diagnostic rubric). Notwithstanding his ‘exceptionally high intelligence’, the applicant ‘has profound impairments in vocational and interpersonal functioning’. He also ‘has a number of diagnosable paraphilias including sadomasochism, coprophilia and urophilia’, and ‘gives an account of a rich and vivid fantasy life’. Associate Professor Carroll said that a ‘significant core problem in Asperger’s disorder is impaired capacity to empathise with the thoughts and feelings of other people’, so that it is ‘possible’ that he ‘was unable to appreciate the full extent of the impact of his behaviours upon the victim’.
Associate Professor Warrick Brewer, a consultant clinical neuropsychologist, also provided a report, dated 29 February 2016, and was called to give evidence viva voce. He said in evidence that he had diagnosed the applicant as suffering from Asperger’s disorder and a major depressive disorder. Autism Spectrum Disorder (‘ASD’) — Asperger’s disorder falling within that ‘spectrum’ — is a ‘neurodevelopmental disorder’ that becomes ‘apparent earlier in childhood’. Determining the existence of Asperger’s disorder, Associate Professor Brewer said, requires a full psychometric assessment. Important to that assessment are four ‘sub factors’, including ‘social relationships, language difficulties or problems interpreting meaning in language, sensory motor difficulties, and also circumscribed interests’. Associate Professor Brewer said that a ‘key feature’ of Asperger’s disorder is the compromised ability of sufferers ‘to imagine what [another] person is thinking or feeling’. Sufferers of Asperger’s disorder thus have difficulties in empathising with others. Emotional immaturity is another feature of the disorder.
The applicant, Associate Professor Brewer said, had commenced an online relationship with a person called ‘Mary’. He had known Mary for seven years at the time of the offence, although they had met only twice. Their relationship pivoted around ‘BDSM’ (bondage and discipline, and sadomasochism). This was in a context in which the applicant had difficulty ‘establishing and then maintaining any friendship for a prolonged period of time’ and, consequently, had developed a ‘compensatory, internalised imaginary friend or mentor’. The applicant found it very difficult to have an emotional relationship with another person and demonstrated a ‘compromised ability to relate to another human being emotionally’. Hence, the breakdown of the relationship with Mary possessed great significance for the applicant given the duration of their relationship, and given that it was the only relationship in his life that the applicant had been able to sustain outside of his family.
Associate Professor Brewer expressed the view that the ending of the relationship with Mary in the days before his offending was ‘reflected in the exacerbation of depression in that week’, and an exacerbation of the applicant’s insomnia. The applicant then reverted back to the ‘other reliable relationship that he had created as a compensatory mechanism … with the internal mentor, and indeed the crystallising communication from that mentor is that it would be a miracle if he found somebody to replace Mary’. Associate Professor Brewer thought that the applicant’s mental state had deteriorated since the ending of the relationship with Mary, and ‘he had lost his capacity for relying upon his excellent analytical skills that normally would have buffered him and assisted him to cope more appropriately’.
Significantly, Associate Professor Brewer’s ‘overall opinion on balance’ was that the applicant’s Asperger’s disorder ‘didn’t cause the offending, [but] it was a significant contribution to the offending and the nature of the offending’. As the offending continued on the second day, the applicant’s anxiety and distress ‘had continued to compound’, and ‘his ability to formulate rational and reasoned behaviour, or to even respond to what the victim was expressing in terms of distress … was becoming further [and] more significantly reduced as his distress exacerbated’. With respect to the applicant’s level of executive functioning throughout the offending, Associate Professor Brewer thought that he did have ‘analytical skills’ to ‘plan’ and ‘organise’, but his ‘socioemotional executive function’ was subject to a ‘significant developmental delay, if not arrest, of those features of socioemotional self’. As a consequence, the ‘socioemotional executive functioning’ of the applicant was ‘significantly compromised’. Put another way, he had ‘lost the capacity for that normal ability in his cognitive executive function to regulate his socioemotional executive function’.
The applicant’s submissions in this Court
In this Court, counsel for the applicant submitted that the reasons for sentence reveal that the sentencing judge only permitted a ‘moderate degree’ in the reduction of the applicant’s moral culpability due to his mental condition at the time of the offence. This was so, it was submitted, despite an acceptance by the sentencing judge that the applicant’s mental state was ‘compromised’ by a major psychological crisis and his Asperger’s disorder, together with depression and insomnia. Counsel contended that the key justification for this approach was the sentencing judge’s assessment that the applicant’s deficits ‘were not causally related to [his] offending at all times’. The judge said that there are ‘clear examples of [his] cognition engaging and dominating’, such as protecting his identity; considering leverage over the victim into the future; dealing with issues concerning the victim’s mobile phone; discussing what should be said if the police attended; and lying to police when intercepted.
Counsel for the applicant submitted that whether there was any impairment, or compromise, of the applicant’s mental health was highly relevant to the assessment of his moral culpability, which, of course, would have had a great impact on the extent of the punishment imposed upon the applicant. The unchallenged evidence was that the applicant was suffering from undiagnosed Asperger’s disorder at the time of the offending. And Associate Professor Brewer — despite extensive cross-examination by the prosecutor and probing by the sentencing judge — maintained that the applicant’s mental state at the time of the commission of the offences was ‘significantly compromised’. Notwithstanding that assessment, however, the sentencing judge found that the applicant’s moral culpability — and thus his responsibility for the offending — was only to be reduced by a ‘moderate degree’.
It was not open to the sentencing judge, counsel submitted, to make such a ‘limited’ finding as to the contribution of the applicant’s mental condition to his offending by allowing only a moderate reduction in his moral culpability. Such a ‘limited’ finding appears to have been made because the sentencing judge thought that there were acts surrounding the offending that suggested that the applicant had acted in a rational, purposeful and calculated manner. There were, so counsel contended, two fundamental errors with such an approach.
First, in coming to his critical conclusion that the applicant’s mental condition contributed ‘significantly’ to his offending, Associate Professor Brewer specifically took into account the conduct of the applicant during his offending that was ostensibly logical, purposeful and rational. Such ‘conduct’ mirrored what the sentencing judge had taken into account to diminish the impact of the applicant’s mental condition upon his offending. Thus, while it is a matter for the sentencing judge to weigh the relevance and significance of the compromised mental state of the applicant, it was not open to reduce the impact of his mental condition from ‘significant’ to ‘moderate’ in circumstances where an expert witness had given his opinion on an identical sub-stratum of facts to the sentencing judge that the applicant’s mental condition was such that it ‘significantly contributed’ to not only the fact that he offended, but to the nature, extent and quality of that offending.
Secondly, when dealing with the ‘rational’ conduct of the applicant, Associate Professor Brewer drew a clear distinction between the applicant’s executive cognitive function — which was at a high level — and his socio-emotional function. He found that the socio-emotional function of the applicant was operating at an impoverished level. That deficit was a significant contributor to the offending and the nature of the offending. It was a key feature of Asperger’s disorder, yet the sentencing judge did not attribute any significance at all to that critical divide between intelligence and emotional competency in the applicant’s compromised mind which was found by Associate Professor Brewer to be central in the ‘significant contribution’ made by his mental condition to the nature and quality of his offending. The consequence of this approach by the sentencing judge meant that the applicant was effectively punished for his crimes as if his mental condition was only of moderate, or marginal, relevance.
Finally, counsel for the applicant submitted that the impermissible finding that the applicant’s compromised mental state would only have a moderate role to play in the assessment of the applicant’s moral culpability meant that the individual sentences, non-parole period and total effective sentence, were beyond what would have been expected had the applicant’s mental condition not have been discounted in the manner in which the sentencing judge did.
Discussion
We reject the foregoing submissions.
Many of the individual sentences — which we regard as merciful — and the total effective sentence and non-parole period, can only be explained by the judge giving substantial weight to the applicant’s mental impairment.
Bearing steadily in mind the notion that a particular instance of an offence can only properly be said to fall within the ‘worst category’ of that species of offence if it is so grave as to warrant the imposition of the prescribed maximum penalty for that offence — having regard to both the nature of the crime and the circumstances of the criminal[31] —we think that some of the applicant’s offending must be seen as falling within the worst category. In particular, notwithstanding that it might perhaps be possible to imagine even worse examples,[32] we regard the rapes in charges 14, 22, 24 and 25, and the sexual assaults in charges 15, 16, 17 and 18, as being within the worst category for those offences. Thus we think the individual sentences of imprisonment for the rapes in charges 14, 22, 24 and 25 — respectively 10 years, 11 years, eight years and 10 years — and those for the sexual assaults in charges 15, 16, 17 and 18 — respectively five years, five years, 18 months and two years — to be explicable only on the basis that the sentencing judge gave very great weight to the expert opinion concerning the applicant’s mental impairment, and to his plea of guilty. Were it not for those two factors, we think that individual sentences of much greater magnitude plainly would have been warranted.
[31]R v Kilic (2016) 259 CLR 256, 265–6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[32]Ibid.
Similarly, we consider that the cumulation ordered between the sentences on individual charges was, to say the least, very moderate. Once more, those orders must be a reflection of the fact that the judge afforded very great weight to the applicant’s mental impairment.
In her reasons for sentence, immediately before the specific passage adverted to in the proposed ground of appeal, the sentencing judge said:[33]
As regards the application of Verdins principles, I act on the basis that causation is not in this context a ‘but for’ test. What is required is a realistic connection, or causal link, between the impairment and the offending and the nexus in that regard properly informs how, and to what extent, the Verdins principles are weighted and applied. I accept that your Asperger’s [disorder] compromised your mental state, in that it was a significant contributor to both the creation of, and your reliance upon, the fantasy world. Associate Professor Carroll indicated that this is the kind of experience recognised to occur in Asperger’s patients. Associate Professor Brewer opined that the break-up caused you to further retreat from reality and experience acute distress, and in this state you lost the capacity for relying upon analytical skills which would normally have assisted you to cope more appropriately.
I accept that your mental state at various times during the 26 hours over which you offended was compromised, as a result of the ‘major psychological crisis’ as described by Associate Professor Carroll. At those times your Asperger’s [disorder], and history in that regard, facilitated your regression into the fantasy word with the imaginary mentor and the challenge posed of finding a miracle. I accept that your mental stability was further compromised by insomnia and depression to some degree. Your deficits facilitated you remaining wilfully egocentric as regards your desires, and in that sense inhibited your ability to think clearly and exercise appropriate judgement. The nature of your illness, and to a lesser extent your depression, facilitated you viewing what you were engaged in only within the confines of your desires.
However, your deficits in my view were not causally related to your offending at all times. There are clear examples of your cognition engaging and dominating such as to protect your identity, to consider leverage into the future, to deal with issues arising from the mobile phone, to discuss what should be said if the police attended, you lying to police when intercepted. I have referred to a range of those matters previously. There is no dispute that you retained your cognitive ability to come to your senses. This was indeed the evidence of Associate Professor Brewer and I think it is clear that at times you chose not to allow reason, or what you knew to be wrong, to stand in the way. You were simply intent upon achieving the gratification you desired, at times conscious as to the effect of victim [sic.] in terms of physical pain and the disgusting nature of the acts, telling the victim that you ‘Did not envy her’ because it was ‘so disgusting’. Further, there was your acknowledgement that you were raping her. You also raised the issue of consent immediately upon interception, telling police you ‘Thought she liked you’. Your conversation with police is telling. You immediately lied and tried to provide a scenario inconsistent with the guilt you were undoubtedly aware of.
[33]Reasons, [135]–[137].
These remarks are, we think, beyond any legitimate criticism.
As we understood the submissions advanced by the applicant’s counsel, it was contended that the applicant’s socio-emotional function was compromised, and that the judge misunderstood the critical divide between intelligence and emotional competency in the applicant’s compromised mind.[34] In our view, however, that contention proceeds on the false premise that the sentencing judge failed to consider the distinction advanced by Associate Professor Brewer. Indeed, as appears from the judge’s reasons, she considered the suggested distinction but, for entirely valid reasons, did not fully accept it. Thus, so it seems to us, the judge concluded that the applicant was not incapable of appreciating the victim’s emotional perspective, but rather sought to exploit it so as to prevent his crimes coming to light (for example, by use of the video recording), whilst obtaining twisted gratification from her suffering. Importantly, the judge found that the applicant was conscious of the effect of his depredations on the hapless victim ‘in terms of physical pain and the disgusting nature of the acts’.
[34]For example, see [38] above.
It cannot be doubted, in our view, that the applicant’s offending was, as the judge thought, calculated and planned. He set out to abduct a stranger, equipped with cord and a blindfold to accomplish that abduction. The applicant hid his car in such a position that he would only need to drag any victim he found a short distance. He lay in wait and then sprang. Having attacked the victim, the applicant had sufficient presence of mind to have the victim send false telephone messages to her friends so as to allay any concerns for her safety that they might have harboured when she did not return from her run. Furthermore, at his premises the applicant had camera equipment, rope, a mask and other things which plainly demonstrate premeditation. The evidence also clearly shows that the applicant from an early stage had given a deal of thought as to how he would manage police involvement, and how he would ensure the victim’s silence through threats to release the degrading video footage.
The applicant’s offending was prolonged, and was calculated to degrade and humiliate the victim. Much of what the applicant said to the victim was ugly and vicious, and was designed to cower her. Indeed, the applicant terrorised the victim over the course of two days, gaining obvious pleasure from her fear and her pain. He did not use a condom, and taunted the victim with the possibility of having ‘rape babies’. Additionally, as we have said, the overall offending was permeated with acts of gratuitous violence.
In our view, the applicant’s actions were not the spontaneous acts of a man lost in fantasy. They were the actions of a man who coolly, and with considerable planning, decided to commit a repulsive crime in order to satisfy his perverted inclinations.
We regard the applicant’s core contention that the individual sentences, non-parole period and total effective sentence imposed were beyond what would have been expected had the applicant’s mental condition not have been impermissibly discounted, to be wholly without substance. In our opinion, the individual sentences are, by and large, very lenient, as are the total effective sentence and non-parole period. Plainly, the judge was astute to be faithful to the principle of totality, and to give proper weight to the mitigating effect of the applicant’s mental impairment.
For these reasons, the applicant’s proposed application to appeal against sentence enjoys no prospects of success.
There are two final matters that we wish to mention.
First, we respectfully agree with the judge’s opinion that the victim is ‘a brave, intelligent, young woman’, whose ‘composure was nothing short of remarkable’. Notwithstanding that this is so, however, as the judge acknowledged, the applicant’s conduct will continue ‘to pervade her life by intrusive thought, fear, and interference with every aspect of her academic, social and personal life’; and ‘will continue to ripple through the victim’s life and those of her family and loved ones’, such that the applicant’s offending has ‘damaged the very fabric of her young life‘. The impact upon the victim of the applicant’s abhorrent crime needed to be given proper weight in the exercise of the sentencing discretion. It could neither be overlooked nor undervalued.
Secondly, we think, with respect, that the judge is to be commended for the careful and thoughtful manner in which she approached the imposition of sentence. Her Honour adhered to principle, and, although the applicant’s sickening offending is apt to provoke a strong visceral reaction in even the most battle-hardened judge, it would be obvious to the objective observer that the judge did not permit any emotional reaction to the applicant’s outrageous crime to unbalance the exercise of the sentencing discretion.
Conclusion
The application for extension of time must be refused.
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