Harmon (a pseudonym) v The Queen

[2017] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0210

CLAYTON HARMON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To reduce the possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	ASHLEY, REDLICH and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2017
DATE OF JUDGMENT:	29 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 169
JUDGMENT APPEALED FROM:	DPP v [Harmon] (Unreported, County Court of Victoria, Judge Hampel, 28 September 2016)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Multiple sexual offences against daughter, niece and granddaughter over many years – Representative and course of conduct charges – Serious sexual offender – Total effective sentence 18y 9m – Non-parole period 14y 3m – Sentencing judge found no causal connection between offender’s extremely low intellectual functioning and offending – Whether finding open on the evidence – Applicability of Verdins principles – Whether sentence manifestly excessive – Leave refused – O’Connor v The Queen [2014] VSCA 108 and DPP v O’Neill (2015) 47 VR 395 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Goodfellow	Tony Hannebery Lawyers
For the Respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA:

1. Clayton Harmon (‘the applicant’) is aged 77, having been born on 19 May 1940.  On 4 April 2016, he pleaded guilty to a total of 10 sexual offences committed against three children — his daughter, a niece, and his granddaughter.  The third victim was the daughter of the first victim.

1. On 28 September 2016, following a plea hearing, the applicant was sentenced to a total effective sentence of 18 years and 9 months’ imprisonment.  The judge fixed a non-parole period of 14 years and 3 months.  The applicant was sentenced as a serious sexual offender on all charges,[2] because he had been sentenced to a period of three years’ imprisonment in 1999 on two charges of sexual penetration of a child aged between 10 and 16 years.

   [2]See Sentencing Act 1991 pt 2A.

1. The charges, the relevant statutory provisions, and sentences imposed were as follows:

Charge No	Offence	Maximum	Sentence	Cumulation
1, 2 and 5 Charge 2 is a representative charge	Unlawful and indecent assault of a female [Crimes Act 1958 (Vic) s 55(1)] (repealed)	5 years’ imprisonment then 10 years’ imprisonment on conviction of a subsequent offence	Charge 1: 2 years’ imprisonment Charge 2: 3 years’ imprisonment Charge 5: 30 months’ imprisonment	Charge 1: 6 months Charge 2: 12 months Charge 5: 9 months
3, 4, 8, 9 and 10 Charge 4 is a course of conduct charge Charges 8 and 9 are representative charges	Incest Charges 3 and 4 [Crimes Act 1958 (Vic) s 52(1)] (repealed) Charges 8, 9 and 10 [Crimes Act 1958 (Vic) s 44(2)]	Charges 3 and 4:    20 years’ imprisonment Charges 8, 9 and 10:    25 years’ imprisonment	Charge 3: 4 years’ imprisonment Charge 4: 7 years’ imprisonment Charge 8: 7 years’ imprisonment Charge 9: 7 years’ imprisonment Charge 10: 5 years’ imprisonment	Charge 3: 12 months Charge 4: Base sentence Charge 8: 2 years Charge 9: 2 years Charge 10: 6 months
6 and 7 Charges 6 and 7 are representative charges	Carnal knowledge of a girl of or above the age of 10 and under the age of 16 [Crimes Act 1958 (Vic) s 48(1)] (repealed)	10 years’ imprisonment	Charge 6: 54 months’ imprisonment Charge 7: 5 years’ imprisonment	Charge 6: 2 years Charge 7: 2 years
Total Effective Sentence:			18 years and 9 months’ imprisonment
Non-Parole Period:			14 years and 3 months’ imprisonment
Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991:			13 days
6AAA statement			25 years’ imprisonment with a non-parole period of 20 years
Other relevant orders:  The applicant was sentenced as a serious sexual offender in respect of Charges 1–10. Pursuant to s 34 of the Sex Offenders Registration Act 2004 (Vic), the length of reporting is Life.

Application for leave to appeal

1. The applicant now seeks leave to appeal against sentence; and, if leave be granted, that his appeal be allowed and that he be re-sentenced.  He relies upon these grounds:

Ground 1:The learned sentencing judge erred in failing to accept that the principles in R v Verdins applied to the applicant and consequently failed to have regard, or failed to have sufficient regard to the impact of the applicant’s cognitive impairment.

Particulars:

(a)The learned sentencing judge failed to correctly assess the applicant’s moral culpability and thereby erred in considering the principles of denunciation and just punishment.

(b)There was no moderation of general and/or specific deterrence as a sentencing consideration.

(c)The weight that a term of imprisonment would have on the applicant was not given adequate consideration.

Ground 2:The individual sentences, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.

Particulars:

(a)The learned sentencing judge gave manifestly insufficient weight to the applicant’s pleas of guilty and the principle of totality.

(b)The sentences imposed do not reflect the historically lower maximum penalty that applied at the time of the applicant’s offending.

(c)The sentences imposed are not consistent with the current sentencing practices.

(d)The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.

(e)The learned sentencing judge gave manifestly insufficient weight to the appellant’s age, ill health and life expectancy.

(f)The learned sentencing judge failed to adequately moderate general and specific deterrence as a result of the appellant’s age and ill health.

1. The first ground alleges specific error.  It is a complaint that the judge erred in a fact-finding exercise, by not being satisfied[3] that the principles in R v Verdins[4] applied in the applicant’s case, this affecting assessment of his moral culpability, bearing also upon general and specific deterrence as sentencing considerations and upon the burden of imprisonment.

   [3]The burden of proof of circumstances of mitigation resting upon the applicant on a balance of probabilities test.

   [4](2007) 16 VR 269 (‘Verdins’).

1. The second ground invites consideration whether the sentence passed was wholly outside the range of the sentencing discretion.  By ‘sentence’, I encompass the individual sentences, orders for cumulation, the consequential total effective sentence and the non-parole period which was fixed.

1. In my opinion, for the reasons which follow, leave to appeal should be refused on both proposed grounds.

Circumstances — an overview

1. The applicant pleaded guilty to four offences against his daughter, H, in the period September 1969 to September 1979: unlawful and indecent assault on a female (charges 1 and 2, charge 2 being a representative charge) and incest (charges 3 and 4, charge 4 being a course of conduct charge).  H, born on 13 September 1963, was aged between 6 and 15 years in the period of the offending.

1. The applicant’s offending against his second victim, R, was expressed by two charges of carnal knowledge of a girl of or above the age of 10 years and under the age of 16 years (charges 6 and 7, both being representative charges) and one charge of unlawful and indecent assault of a female (charge 6).  The offending took place in the period May 1975 to May 1981, when R, born 6 May 1965, was aged between 10 and 15 years.[5]  R is the daughter of a sister of the applicant’s wife.

   [5]See below n 11.

1. The applicant’s offending against his third victim, S, a girl born on 5 August 1989, was the subject of charges 8 to 10, all of them charges of incest.  Two of them — charges 8 and 9 — were representative charges.  The offending occurred in the period 5 August 2002 to 5 August 2006.  Thus, S was aged between 13 and 15 years when the offences were committed.  S is the daughter of H.

1. The applicant was aged between 29 and 39 in the period of his offending against H, between 35 and 41 in the period of his offending against R,[6] and between 62 and 66 when he offended against S.

   [6]Ibid.

1. At time of sentence, the applicant suffered from very recently diagnosed Parkinson’s disease, as well as emphysema, asthma, and moderate hearing impairment.  In addition, he was on medication for high blood pressure.  A patient healthcare summary by the applicant’s general practitioner was put into evidence.

1. Relevant to ground 1 of the present application, reports of Mr Mathew Staios (‘MS’), neuropsychologist, dated 14 April 2016 and of Dr Ann Davidson (‘AD’), psychologist, dated 16 August 2016, were relied upon on the plea. Those reports had been prepared in the context of a query whether the applicant was fit to stand trial, by reference to s 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  They had not been sought with respect to, and were not directed to, Verdins issues.[7]  The central focus of the reports was upon the significance of what was accepted by both examiners as being the applicant’s longstanding and significant deficits in cognitive functioning.  Notwithstanding this, the reports were pressed into service on the plea in a Verdins context.[8]

   [7]Although MS offered certain brief opinions in that connection.

   [8]Although applicant’s counsel on the plea made the point that they had been prepared for another purpose.

The detail of the offending

1. The factual basis upon which the judge was to sentence the applicant was set out in an amended summary of prosecution opening dated 9 September 2016 (‘the prosecution summary’).  Facts to which I have referred in the overview of the circumstances are drawn from that document.

1. The judge, in her sentencing remarks, drew upon the prosecution summary.

1. With respect to charges 1 to 4, concerning the applicant’s daughter, H, the judge described the relevant circumstances this way:

So far as your daughter is concerned, Charge 1 of indecent assault, involved exposing yourself to her, making her remove her underwear, rubbing your penis between her legs, ejaculating on her and directing her to clean herself up and put her underwear back on.  This was the first incident that she can recall.  She was 6 years of age.

Charge 2 of indecent assault is representative of 2 specific occasions of digital penetration but must be seen against a background of multiple other acts of like conduct, uncharged acts for the purpose of sentencing.  The actual conduct, the subject of Charge 2, occurred on a fishing trip and involved directing your daughter to remove her underwear, and digitally penetrating her (causing her pain and making her cry), whilst at the same time, exposing your penis and masturbating yourself to ejaculation, before wiping yourself off, apologising to her and offering her money to stop crying.  This type of conduct happened on other fishing trips as well.  The other specific occasion of digital penetration relied on for this charge occurred in her bedroom after she had gone to sleep for the night.  You entered her room, pulled her underwear down, and digitally penetrated her.  She recalls you leaving the door ajar and being able to see her mother asleep in the bedroom opposite.  Again, this is seen against a background of digital penetrations occurring in her bedroom after she had gone to bed and to sleep for the night on a regular basis.

Charge 3 is the first act of penile/vaginal penetration, which your daughter can recall, and is charged as incest.  Your daughter was 15.  You directed her to go to the bedroom you shared with her mother, to remove her underwear and lie on the bed.  You forced your penis into her vagina.  You told her not to worry, that she would not become pregnant.  It was painful and you told her it would not hurt any more.  When you stopped she was bleeding.

Charge 4 is also a charge of incest and it is a representative charge.  The specific act relied on is an occasion when you directed your daughter to lie on the back seat of the car; when you had driven her to a property you leased where you agisted horses.  You penetrated her vagina with your penis and ejaculated.  She cried, and you told her to shut up and said it wouldn’t take long.  This is representative of 31 other occasions of sexual penetration of your daughter at the property.  Some acts took place like this charged act on the back seat of the car, others in the rear section of the station wagon, others on the sloping lids of the feed bins in the shed and yet others on hay bales in a bin area on the property.  On each occasion she would cry, you would continue until you had ejaculated, and you would then let her, or direct her, to clean herself up and put her underwear back on.[9]

[9]            Transcript of Proceedings, DPP v [Harmon] (County Court of Victoria, CR-16-00014, Judge Hampel, 28 September 2016) [6]-[9] (‘Sentencing Remarks’).  Having read the prosecution summary, and compared it with the judge’s recitation of the circumstances, I think that in all but one respect the two coincided.  As I understand it, with respect to charge 4, dealt with at [9] in the judge’s sentencing remarks, the judge’s statement that, following the specific act relied upon, H cried, and the applicant told her to ‘shut up’ and said it ‘wouldn’t take long’, was not said by the applicant on the occasion of the specific act relied upon; but, rather, in other representative instances.  But nothing turns on this minor discrepancy.

1. I note that at [9] in her sentencing remarks, the judge continued:

Such was your dominance of her that it got to the stage where you would simply point to a place, and she would go there and remove her underwear, and lie or sit where directed for you to then penetrate her.[10]

[10]Ibid [9].

1. That was, in part, a conclusion by the judge based upon circumstances set out in the prosecution summary.  Insofar as it represented a conclusion and was not simply a statement of those  circumstances, it was entirely justified.

1. The judge dealt with the circumstances of the applicant’s offending upon R as follows:

Charges 5 to 7 concern your niece.  There was regular contact between your family and hers.  Charge 5 is one of indecent assault.  You were driving her from her family’s home to yours.  You stopped the car in a remote area, made her lie on the ground, kissed her and then digitally penetrated her.  You asked her if she like it, told her not to worry, that you would not hurt her, that it was a secret and that people would be really angry if she told anyone.  She was approximately 8 years old.

Charge 6 is the first charge of carnal knowledge.  Again, you were trusted to take her with you in your car.  Again, you went to a remote place and made her get out of the car.  You pushed her on to her back from a seated position, held her down and penetrated her vagina with your penis.  She was crying.  This is representative of a second occasion.  The second occasion happened when you happened to be alone with her in the house of one of your brothers.  You forced her onto a bed, over her protests, and penetrated her, continuing until you ejaculated.  She was crying, and when you had finished, she told you that you had hurt her and that she was bleeding.  Your response was to get a rag to clean yourself, to shush her and tell her that you would take her home.

Charge 7 is a further representative charge of carnal knowledge.  This act, and those it represents, all occurred at the same agistment property where you had repeatedly penetrated your daughter.  The act, the subject of the charge, took place in the back seat of a car, in similar circumstances to that detailed in charge 4 concerning your daughter.  Again, with your niece, you continued until you had ejaculated.  Other acts occurred with her pushed, or held up against the wall of the shed, when bending over the feed bins or when picking up hay.  On one occasion, you withdrew before ejaculation and masturbated yourself to ejaculation in her presence.  Four specific instances are detailed as part of the representative charge and many similar, but unspecified acts relied on as uncharged acts.  On the last occasion, you used debasing and offensive language to her, epithets such as mole, slut, and used goods who no one would want, after you had finished.  You used other insults which made her realise that she was not your only victim, such as “All you girls are the same, you all like a cock”.[11]

[11]Ibid [11]-[13]. I should mention that counsel for the parties agreed, the Court having raised the matter, that — (1) charges 6 and 7, as set out in the indictment, correctly stated the relevant statutory offence, but misstated the ‘between dates’; (2) the judge had sentenced by reference to the relevant offence; and (3), it was unnecessary (even if it was possible) to now amend the indictment.

1. The judge detailed the circumstances with respect to the third victim, S, as follows:

Charges 8 to 10 all concern the final victim, your granddaughter.  Charge 8 is of licking and penetrating her vagina with your tongue.  The act relied on for the charge occurred on your bed, when she was at your home and you were babysitting.  You made her go to your bedroom, lie down on the bed and remove her underwear before proceeding to lick and penetrate her with your tongue.  When you had finished, you told her to get dressed and left the room.  The other specific instances relied on for this charge occurred at the same agistment property where you had abused your daughter and niece.  Two further acts occurred on a single occasion, the first on a hay bale, the second, shortly after, in the back of the car.  There are many uncharged acts of like conduct, which are not identifiable by reference to anything sufficiently specific so as to be included as a separate charge, or a separate act relied on, in a representative charge.  Some occurred as part of a sequence of events at the property, where you would lick her vagina, digitally penetrate her and then rub your penis against her vagina.

Charge 9 is a charge of incest, constituted by digital penetration.  The act relied on for the charge occurred again at the agistment property in the shed or stables area.  You came up behind your granddaughter, put your hand down her pants and penetrated her, despite her efforts to stop you by closing her legs.  There are 4 other specified acts of like conduct, 3 occurring in similar circumstances, the fourth when you made your granddaughter lie on a hay bale and occurring as part of the sequence of events after the acts of lingual penetration described as part of charge 8.  There was a further occasions [sic], when you allowed your granddaughter to drive the car on a country road, and where you directed her to open her legs, and digitally penetrated her whilst she was driving.  There are a number of unspecified, and so uncharged acts, where digital penetration in this context also occurred whilst driving.  And finally, there is one specified instance, and other uncharged acts of 5 occasions, where you digitally penetrated your granddaughter while you were watching television in the lounge of your home, and your wife, the child’s grandmother, was asleep on the sofa beside you.

Charge 10 concerns incest by penile vaginal penetration.  This is a single act, occurring at the property, after the occasion where you had already in that same episode, digitally penetrated your granddaughter from behind in the stables, then made her lie on the hay bale where you had penetrated her with your tongue and finger, and then had directed her to the back of the car where you had again licked her vagina and penetrated it with your tongue.  You then exposed your penis, and over her protests and physical resistance, forced it part-way into her vagina.[12]

[12]Ibid [14]-[16].

1. As I read the prosecution summary, charge 9 was said to be representative of three, rather than four other specified acts.  Contrast paragraph [15] of the sentencing remarks.  But perhaps the matter is not altogether clear.

1. Speaking generally, it was obviously not easy for the judge to separate out the conduct which was relied upon to found the charges and, on the other hand, the many uncharged acts to which the summary referred.  Nonetheless, the applicant fell to be sentenced in respect of the charged offences, and none other.  The judge referred, at [13] in her sentencing remarks, to the prosecution having ‘relied’ upon many similar but unspecified acts as uncharged acts.  What her Honour meant by reliance is not quite clear.  I doubt that it is clarified by something which she had said in the course of the plea hearing:

But let me place on record I know that I must sentence for the offences charged for the uncharged acts that are described around them in relation to the sexual offending itself in respect of each complainant and that some of the charges are representative charges and I sentence on that basis.[13]

[13]Transcript of Proceedings, DPP v [Harmon] (County Court of Victoria, CR-16-00014, Judge Hampel, 15-16 September 2016) 21 lines 14-19 (‘Plea Transcript’).

1. That passage in the transcript is very difficult to understand.  It looks as if words are missing.  In any event, whatever the judge meant by what she said at [13] in her sentencing remarks, it is not relied upon as specific error; or in explanation of what is said to be a manifestly excessive sentence.

Sentencing remarks

1. Having set out the circumstances of the offending, the judge addressed the following matters.

1. First, the effect of the applicant’s offending upon the victims.  It had been profound.

1. Second, there had been relevant changes in legislation over the period of the offending.  In some instances, the applicant had pleaded guilty to conduct characterised as indecent assault, where today the same conduct would constitute rape, incest or sexual penetration of a child under 16, depending on the circumstances.

1. Third, not only had statutory characterisation of some of the offending conduct changed over time, penalties had increased significantly.

1. Fourth, although sentence must be imposed for the earlier offences by reference to the penalties then prescribed, the judge when sentencing ‘must also have regard to the way the seriousness of sexual offending against children is now regarded’.[14]

   [14]Sentencing Remarks, above n 9, [23].

1. Fifth, it was clear that the applicant’s offending was of a high order of gravity, spanning a long period of time.  There had been a lengthy period of offending against H and R,  and the applicant recommenced offending many years later against S.  Further, before he offended against S, the applicant had been tried, convicted and sentenced for sexual penetration of another child under 16 years of age.  The sentence of imprisonment imposed in 1999 had not deterred the applicant from sexual interference with other children.  He had offended against S within a short time of his release.

1. Sixth, any suggestion that the applicant was unaware that sexual offending against children was wrong, or how seriously it was regarded, could not be sustained when the applicant had reoffended shortly after his release from prison for sexual offending against a child.

1. Seventh, the gravity of the applicant’s offending was

marked by debasing treatment of all 3 victims over their protests, clearly without their consent and which caused each of them physical pain and injury, as well as significant, and for your 2 older victims, life-long psychological suffering.  The offending was accompanied by threats of harm to them and others if they told anyone.  It was brazen.  At times there were other people nearby and yet you carried on with impugnity.  They[15] were all given money or other gifts as apologies for hurting them, or as a reward for a particular event, or for their silence.[16]

[15]That is, the victims.

[16]Sentencing Remarks, above n 9, [25].

1. Eighth:

The number of victims, their relationship to and with you, the number and nature of the acts, the repeated engagement in unprotected sex with all of them, with the attendant fear for them of risk of pregnancy and transmission of sexual [sic] transmitted disease, no matter what you said about your sense of whether they were safe from pregnancy or not, add to the gravity of the offending; so does the fact that it was clearly non-consensual.

The [sic] is no way that this can be seen as anything other than forcing your clearly unwelcome, degraded and perverted attentions on vulnerable children over whom you exercised considerable power and authority, and in respect of whom you stood in a position of considerable trust, as father, uncle and grandfather.[17]

[17]Ibid [26]-[27].

1. Having identified the gravity of the offending, the judge observed that:

It is clear that, subject to considerations personal to you, denunciation, deterrence, both general and specific, just punishment and protection of the community all loom large as sentencing considerations.[18]

[18]Ibid [30].

1. With respect to mitigatory circumstances, the judge concluded that the applicant’s plea of guilty, though not early, had utilitarian value, had spared the applicant’s victims the ordeal of reliving events and recounting them at trial, and had vindicated them as witnesses of truth.  But the judge found that the plea was not supportive of remorse.[19]

   [19]Ibid [31].

1. The judge stated that the applicant’s age and health would both make imprisonment more onerous for him and operated to moderate the sentence otherwise appropriate.  She accepted that he suffered from the medical conditions to which I have earlier referred.[20]

   [20]Ibid [32]-[33]; see [12] of these reasons.

1. The judge concluded that the delay between the offending conduct and the plea was not a matter which should count in the applicant’s favour.  She explained why that was so.[21]

   [21]Ibid [36].

1. Then the judge dealt with what she described as ‘a more troublesome issue’, that is, the level of the applicant’s cognitive function.  Noting that MS and AD were of opinion that the applicant had a ‘significant longstanding cognitive impairment’, the judge observed that:

Whether it is an intellectual disability or a learning disability, or a combination of both, it is really not to the point.  It is agreed that your cognitive functioning is impaired and has been for a very long time.[22]

I interpolate that the applicant’s full scale intelligence quotient (‘IQ’) is 63, this placing him within the extremely low range of intellectual functioning.

[22]Ibid [38].

1. Having described the applicant’s work activities as a professional fisherman, his history of involvement with and training of horses, and the fact that he had been able to obtain a driver’s licence, including passing the written test, the judge made this observation:

It is clear from the materials that your wife has assisted you in activities where reading, writing, bookkeeping or organisational skills around the management of the fishing business were required, but nonetheless, your level of actual functioning is best assessed, not by reference only to the results of the intellectual testing, but by reference to what you have been doing all your life.  This is a very good example of the importance of treating the diagnosis, or label, as the start and not the end of the inquiry, when considering the extent to which any of the limbs of Verdins are applicable.[23]

[23]Ibid [42] (citations omitted).

1. Then, the judge referred to a single paragraph in the report of MS, which read:

The extent of [the applicant’s] global cognitive difficulties indicates a significantly reduced capacity for alternative thinking and self-awareness, leading to socially appropriate behaviours.[24]  The neuropsychological sequelae identified suggests a reduced ability to control his impulses, inhibit automatic responses, reflect and utilise feedback [from] his naturalistic environment, thus leaving him significantly more exposed to the commission of inappropriate behaviours.  In relation to his current sexual offences, [the applicant’s] offending is best accounted for by his longstanding and undiagnosed Moderate Intellectual Developmental Disorder, which has likely resulted in a reduced understanding of social cues, inappropriate levels of intimacy and sexual behaviours. [25]

[24]The paragraph reads, “Socially appropriate behaviours” but I anticipate that is a typographical error and it should read, “Socially inappropriate behaviours”.  (Footnote in original).

[25]Sentencing Remarks, above n 9, [43].

1. The judge, however, rejected the opinion that there was a causal connection between the applicant’s impaired intellectual functioning and his sexual offending.  Her Honour stated that —

it was clear from the responses you gave [AD] when she was assessing your fitness for trial, that you understood what you were doing with your daughter, niece and granddaughter was wrong.  You described yourself as naughty and volunteered that is [sic] was not right to have sex with family members or children.[26]

[26]Ibid [44].

1. The judge further concluded that the applicant’s behaviour during his sexual offending did not support the opinion of MS.  This is how her Honour explained it:

Much of the offending was committed when you had the child isolated.  Some of the more brazen acts occurred in the presence of your sleeping wife, or where others were nearby, but it was clear that you considered you could act with impunity.  Rather than suggesting this was poor impulse control, it is clear that you chose times and places where you could isolate your victims, or had a sense of confidence that you could do what you did undetected and without fear that the child would complain or expose you.  You threatened the children with harm and other consequences if they told anybody and sought to secure their silence by giving them money and other gifts.[27]

[27]Ibid [45].

1. So it was that the judge concluded that she was not satisfied that the applicant’s moral culpability was reduced by reason of his cognitive impairment, and that his cognitive impairment did not operate so as to moderate the weight to be given to general or specific deterrence.  Further again, relying upon what the applicant had told AD about the manner of service of his earlier term of imprisonment — that is, that he had coped well, got on with everyone, and had a best mate who had protected him in return for the applicant securing him additional food — the judge rejected MS’s opinion that the applicant’s cognitive impairment would add to the burden of imprisonment.

1. In all, then, the judge expressed herself not satisfied that any of the limbs of Verdins sought to be invoked on the applicant’s behalf was enlivened.[28]

   [28]Ibid [48].

1. Having stated that — (1) the applicant fell to be sentenced as a serious sexual offender in respect of all charges; (2) she did not consider it necessary to impose a disproportionate sentence; (3) it was clearly inappropriate to cumulate all sentences by reason of the needs of totality; (4) she had determined upon sentences which, as best as possible, reflected the maximum sentences applicable at the relevant time but having regard to the seriousness with which such offending is regarded today; and (5) sentences of imprisonment for the same type of conduct but with different victims at different times had to take account of different maximum penalties — the judge imposed the sentences outlined at [3] above.

Ground 1

Submissions for the applicant

1. In writing, applicant’s counsel submitted that the judge erred by concluding that the propositions outlined in Verdins did not apply to the applicant.  In particular, her Honour’s conclusions that there was no reduction in moral culpability or in the significance of specific and general deterrence for sentencing purposes, and her conclusion that the applicant’s cognitive impairment would not make imprisonment more onerous were conclusions were made — (1) without there being contrary opinion; (2) without seeking that the experts be called; (3) without seeking additional psychological or psychiatric evidence; and (4) with the prosecution not having opposed the application of the Verdins principles upon which the applicant relied.  Counsel submitted that, whilst it was correct for the judge to exercise caution before concluding that an offender suffered from a mental impairment at the relevant times, the evidence of the two experts articulated why it was appropriate to moderate general and specific deterrence, and why the applicant would find imprisonment more burdensome.

1. Orally, counsel accepted that it is correct to approach the application or otherwise of Verdins principles by consideration of all relevant evidence. Counsel did not dispute that the judge had been entitled to make the findings at [44] and [45] in her sentencing remarks, which I have set out at [40]–[41] above. His central argument was that the circumstances described by the judge did not exclude the applicant’s cognitive impairment having played a causative role in his offending. The situation was not just black and white. Moral culpability lies in a spectrum. The judge erred, so it was submitted, by not finding that the applicant’s moral culpability was reduced to an extent. The same conclusion should have flowed through into her Honour’s assessment of the importance of general and specific deterrence. Counsel submitted that, in any event, apart from any causal connection between the applicant’s cognitive impairment and his offending, the simple fact of the impairment meant that general deterrence was of reduced significance as a sentencing consideration. Finally, counsel submitted that the judge had erred by failing to be satisfied that the applicant’s impairment meant that he would face a greater burden of imprisonment than would the general run of prisoners. The affirmative opinion of MS was not gainsaid by the judge’s reliance upon a fragment of what the applicant had told AD about his experience of prison many years earlier.

Submissions for the respondent

1. It was submitted in writing for the respondent that there was a question whether MS really had made a sufficient connection between the applicant’s cognitive disability and the offending.  The witness had concluded that the applicant’s difficulties satisfied the criteria for a diagnosis of a moderate intellectual disorder.  But although he had concluded that the disorder rendered the applicant unfit to plead, the case had proceeded on a contrary basis.  So, it was submitted, it was to be assumed that MS was in error at least so far as he asserted that the applicant’s mental processes were sufficiently disordered or impaired as to render him unable to carry out the various tasks specified in sub-ss 6(1)(a)–(f) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

That generated this rhetorical question: ‘So long as [MS’s] opinion as to the extent of the applicant’s disorder was in error on the question of fitness to plead, how could it reliably be employed on the Verdins question?’  It might be assumed,  because of the applicant’s very low IQ, that his capacity to reason was impaired to some degree.  But there was no reliable manner to gauge the extent or essential features of the impairment.  So it was contended that ‘[t]he necessary rejection of [MS’s] opinion on fitness must be seen to have tainted the opinion overall’.[29]

[29]Respondent’s response to applicant’s written case, 4 [3.4].

1. In the alternative, it was submitted that, even if it was accepted that there was sufficient evidence of an impairment of the applicant’s mental function, MS’s opinion far from established that there was a ‘realistic connection’ between this impairment and the offending.  In that connection, it was submitted that:

To qualify so as to reduce moral culpability and/or reduce specific and/or general deterrence, it must be established that “the mental impairment affected the offender’s ability to appreciate the wrongfulness of the conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or to think clearly at the time of the offence”:  [DPP v O’Neill (2015) 47 VR 395 (‘O’Neill’)] at [75]. Yet, simply opining that something is “best accounted for” by something else that is only “likely” is, it is submitted, unacceptably tentative at best, and speculative at worst. This is hardly “cogent evidence” that established the “nature, extent and effect” of the mental impairment, as is required by Verdins: see O’Neill at [77].[30]

[30]Ibid 4 [3.6].

1. Acknowledging that this particular criticism of MS’s opinion had not been put to the sentencing judge, a criticism ‘probably well founded’, it was submitted that the absence of criticism could not elevate the opinion of MS to something which it was not.

1. All that said, the respondent submitted that, in fact, the judge had accepted that MS made the required connection between mental impairment and offending.  But having accepted that the opinion went so far, the judge had not accepted it.

1. According to the respondent’s submission, it was open to the judge to reject the opinion having regard to other independent evidence, which included statements made by the applicant to AD in which he acknowledged the wrongfulness of his actions, and also the objective circumstances of the offending.  Thus, it was submitted:

It was open to the judge to approach the matter in this way. [MS] thought that the applicant’s intellectual disorder “has likely resulted in a reduced understanding of social cues, inappropriate levels of intimacy and sexual behaviours”: see [MS’s] Report at [30]. But, with respect, it is difficult to see – even if this were a true representation of the applicant’s condition – how this could have any bearing upon the facts of the present case. For instance, the applicant’s offending in this case involved threats. The young complainants were often visibly crying. The complainants were sometimes put in excruciating pain. On one occasion the applicant told a complainant that she could scream but that no-one would hear her. The applicant knew that what he was doing was wrong because sometimes he would say that he was “sorry”. He said to the second complainant: “all you girls are the same, you all like cock”. He called the second complainant a “mole”, “slut” and “used goods”. He said that “when he was finished … [with the second complainant]… no-one would ever want her and love her”. Of course, the offending against the third complainant occurred after the applicant had served a substantial sentence for sexual offending against children. By no stretch of the imagination could this case be conceived of as one involving “reduced understanding of social cues, inappropriate levels of intimacy and sexual behaviours”. [MS’s] diagnosis and the facts of the present case occupied entirely different moral universes.[31]

[31]Ibid 5 [3.10].

1. This was not a case, the respondent submitted, where MS’s opinion was not uncontradicted.  Having regard to all the circumstances of the matter, it was not inherently reasonable and conclusive of a connection between the applicant’s cognitive impairment and the offending.

1. Specifically with respect to the issue of burden of imprisonment, the respondent submitted that the judge had rejected MS’s opinion, which was at odds with the applicant’s own account of the way in which he had managed when imprisoned on the earlier occasion.  It was submitted that ‘the applicant — out of his own mouth — demonstrated a capacity to reason with some capability, and indeed to his own advantage, whilst he was in custody’;[32] and ‘[t]here was no reason not to assume that the same would hold true during the service of any future sentence’.[33]

   [32]Ibid 6 [3.12].

   [33]Ibid.

1. For the reasons articulated, the respondent submitted in writing that ground 1 was not reasonably arguable, and leave to appeal should be refused in respect of it.

1. Orally, counsel for the respondent submitted that the judge’s finding with respect to moral culpability had been well open.  Moral culpability, counsel submitted, is awareness of wrongdoing, but still doing it.  The opinion of MS was expressed in an abstract way.  It did not focus upon, or seek to explain, the applicant’s actual conduct.  Rigorous evaluation of the evidence is required; and such evaluation did not assist the applicant.

1. Counsel further submitted that the judge’s conclusion that there was no causal link between the applicant’s offending and his cognitive impairment meant that there was no reason to accord general or specific deterrence reduced weight in the sentencing synthesis.  Counsel qualified that to the extent of agreeing that it may be appropriate, in a particular case, to moderate the significance of general deterrence as a sentencing consideration by reason of an offender’s evident impairment, even absent a causal relationship between the impairment and the offending.

1. As to the judge’s conclusion with respect to burden of imprisonment, counsel emphasised that the judge’s finding had been open, the applicant having carried the burden of proof.

Analysis

1. The way in which reliance by an accused person on the principles set out in Verdins[34] might be made out has been recently discussed in O’Connor v The Queen[35] and O’Neill.[36]

   [34](2007) 16 VR 269.

   [35][2014] VSCA 108 (‘O’Connor’).

   [36](2015) 47 VR 395.

1. In O’Connor,[37] Weinberg JA made the point that the question whether an accused person fell within one or more of the criteria set out in Verdins is a question for submissions and ultimate determination by the sentencing judge.[38]  In that case, an expert engaged on behalf of the applicant had expressed conclusions not simply as to the existence of mental impairment but that such impairment enlivened Verdins principles.  Weinberg JA was clear that the second of those matters was one for the judge, not the expert.

   [37][2014] VSCA 108.

   [38]Ibid [22].

1. This is not to say, however, that there is no need for expert opinion.  Agreeing with the point made by Weinberg JA, Maxwell P observed that nonetheless there must be expert evidence from which the Court can draw the pertinent conclusions. His Honour said:

What Verdins did — as was first done in R v Tsiaras,[39] the seminal decision in this area — was identify sentencing considerations.  Verdins identified six sentencing considerations which might or might not be made relevant in a particular case, depending on the expert evidence before the sentencing court about the impairment of mental functioning of the person to be sentenced.  Whether one more of those considerations applies is, however, a matter for the court.  It is no concern of the expert witness.[40]

And:

None of the Verdins sentencing considerations can apply unless there is specific evidence from an expert about:

(a)       the nature of the impairment of the offender’s mental functioning;

(b)how the impairment affected, or was likely to have affected, the offender at the time of the offending;  and/or

(c)how the impairment was affecting the offender at the time of sentence, or was likely to affect him/her in the future.[41]

[39][1996] 1 VR 398 (‘Tsiaras’).

[40]Ibid [63] (emphasis added).

[41]Ibid [65] (emphasis added).

1. O’Connor was a man with very low IQ, though it was not as low as that of the present applicant.  Maxwell P made it clear that Verdins principles can be successfully invoked in such a case:

The present case concerns intellectual impairment rather than mental illness.  Such impairment can, of course, render one or more of the Verdins sentencing considerations applicable but, as always, that will depend on what the evidence shows about the particular offender.[42]

[42]Ibid [68] (emphasis added).

1. In O’Connor,[43] applicant’s trial counsel had eschewed reliance on Verdins.  Yet, on the appeal, his counsel sought to rely upon the judge’s ‘failure’ to apply Verdins.  It might be said that the observations of the President and Weinberg JA[44] to which I have referred were strictly unnecessary.  But they were considered remarks, and were consistent with other authority.

   [43][2014] VSCA 108.

   [44]With both of whom Priest JA agreed.

1. In O’Neill,[45] the Court summarised the scope and limitations of the Verdins principles as follows:

   [45](2015) 47 VR 395.

First, the principles are enlivened only where the offender suffers from an impairment of mental functioning.[46]  Whether there should be any moderation of general deterrence, and if so its degree, will depend upon the nature and severity of the impairment of mental functioning. …

[46]R v Martin (2007) 20 VR 14 (Maxwell P, Nettle and Redlich JJA); Bowen v The Queen [2011] VSCA 67, [27] (Warren CJ); Freeman v The Queen [2011] VSCA 349, [27] (Nettle JA with whom Warren CJ and Beach AJA agreed); Vergados v The Queen [2011] VSCA 438, [29] (Warren CJ with whom Nettle and Ashley JJA agreed); Carroll v The Queen [2011] VSCA 150, [17]–[20] (Maxwell P with whom Buchanan JA agreed); DPP v Jones [2013] VSCA 330 [95]; O’Toole v The Queen [2013] VSCA 62, [37] (Warren CJ with whom Redlich and Coghlan JJA agreed); DPP v Jones (2013) 40 VR 267, [55] (Redlich and Priest JJA and Robson AJA).

…

Second, in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence.  If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.[47] …

Third, to show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender’s ability to appreciate the wrongfulness of the conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.[48]

Fourth, the fifth and sixth limbs of Verdins may operate where the existing impairment will make prison more onerous, or where prison may exacerbate the mental condition, if the expert evidence establishes the significance of the impairment to the imposition of a prison sentence.[49]

Fifth, cogent evidence, normally in the form of an expert opinion, is necessary to establish the existence of the mental impairment, either at the time of the offence, or at sentence, or both,[50] and the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[51]

Sixth, the assessment by the sentencing judge must be undertaken with rigour, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.[52]

…

Seventh, an existing mental impairment at the time of sentence may require appropriate moderation of general deterrence, if it is determined that by virtue of that mental impairment the offender is not an appropriate vehicle for general deterrence.[53]  Whether that is so ’depends upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused’.[54] [55]

[47]Charles v The Queen (2011) 34 VR 41, 70 [162] (Robson AJA with whom Redlich and Harper JJA agreed).  See also R v Shafik-Eid[2009] VSCA 217, [27] (Lasry AJA with whom Nettle and Redlich JJA agreed); R v Zander [2009] VSCA 10, [26]–[29] (Dodds-Streeton JA with whom Nettle JA agreed); Vergados v The Queen [2011] VSCA 438, [53] (Warren CJ); Carroll v The Queen [2011] VSCA 150, [20] (Maxwell P with whom Buchanan JA agreed); Romero v The Queen (2011) 32 VR 486, 490–1 [13]–[18] (Redlich JA with whom Buchanan and Mandie JJA agreed); Armour v The Queen [2012] VSCA 188, [14]–[18] (Maxwell P and Mandie JA); Latif v The Queen [2013] VSCA 51, [77]–[81] (Weinberg and Harper JJA); Shaw v The Queen [2012] VSCA 78, [49] (Williams AJA with whom Buchanan JA agreed); Arthars v The Queen (2013) 39 VR 613, [13] (Redlich and Coghlan JJA and T Forrest AJA).

[48]Verdins (2007) 16 VR 269, 275 [26]; Charles v The Queen (2011) 34 VR 41, 69–70 [162].

[49]Verdins (2007) 16 VR 269, 275–6 [27]–[30].

[50]Ibid 272 [13]; Carroll v The Queen [2011] VSCA 150, [19].

[51]Verdins (2007) 16 VR 269, 271 [8]; R v Zander [2009] VSCA 10, [29], [32].

[52]DPP v Patterson [2009] VSCA 222, [46]; R v White [2009] VSCA 177, [13]–[17]; Romero v The Queen (2011) 32 VR 486, 490 [13]–[14]; Carroll v The Queen [2011] VSCA 150, [19]; DPP v Gerrard (2011) A Crim R 171, 181 [39]. As is now well-recognised, diagnostic labels are, by themselves, of no assistance to a sentencing judge: R v Robazzini [2010] VSCA 8, [42]; Carroll v The Queen [2011] VSCA 150, [19].

[53]R v Anderson [1981] VR 155, 159–60; R v RLP(2009) 213 A Crim R 461, 472–3 [25]–[26].

[54]R v Iaria [2004] VSC 254, [49] (Nettle J).

[55]DPP v O’Neill (2015) 47 VR 395, 413 [71], 414-15 [74]-[78], 416 [82] (Warren CJ, Redlich and Kaye JJA).

1. Three points should be made.  First, the matters to which the Court referred in the passages just cited should not be understood to mean that expert evidence will be determinative of the outcome of an enquiry whether any aspect of Verdins applies in a particular case.  It will be for the judge to consider all the relevant evidence in that case.

1. But, second, it is surely true that mental impairment or intellectual deficit may be productive of subtle abnormalities affecting perception and conduct.  For that reason, cogent expert evidence of the existence of such subtle changes[56] (if unchallenged, or, if subjected to challenge, tested) is likely to be of real assistance in cases where Verdins is invoked.  To be satisfied — by recourse to observed circumstances or statements — that a person knows right from wrong does not necessarily mean that the quality and extent of that knowledge is not superficial and less morally blameworthy than might otherwise be the case.  It may be said that a childlike awareness of wrongdoing, though expressed by an adult, remains a childlike awareness.  A child who is told not to take a biscuit from a biscuit jar may well know that to take a biscuit is wrong.  But that is not the knowledge of an adult of ordinary intelligence, unaffected by a mental impairment, who knows that it is wrong to steal a motor car.

   [56]Not to be confused with the emperor’s new clothes (Hans Christian Andersen).

1. Third, at least the seventh matter to which the Court referred in O’Neill[57] enables application of the principle that the presence of mental impairment,[58] although causally unrelated to the offending, may nonetheless call for moderation of general deterrence as a sentencing consideration.[59]

   [57](2015) 47 VR 395.

   [58]It may be constituted by an intellectual handicap.

   [59]As to which see O’Neill (2015) 47 VR 395, 407-8 [51], 408-9 [54], 409 [57], 410 [59] (where reference was made to the ‘underlying sense of humanity which guides proper sentencing’), 410-411 [62] (citing Allen J in Engert v The Queen (1995) 84 A Crim R 67), 411 [64] (citing Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48), and 413 [69] (citing Nettle JA in R v Howell (2007) 16 VR 349).

1. At the heart of the applicant’s written argument, as I have previously noted, was the submission that the judge erred by reaching conclusions adverse to the applicant ‘without reference to contrary medical opinion, without seeking that the experts be called and without seeking additional psychological or psychiatric evidence’; and, moreover, when the prosecution did not oppose the application of Verdins with respect to reduction in moral culpability, moderation of specific and general deterrence, and burden of imprisonment.

1. The first of the circumstances relied upon was founded upon the contention that the reports of MS and AD were relevantly to the same effect.  I do not agree that this was so.  Certainly, both MS and AD agreed that the applicant suffers from a significant and longstanding cognitive disability.  Further, it was not in debate that the applicant’s full scale IQ is 63, which is in the extremely low range of intellectual functioning.

1. But there, it seems to me, the reports parted ways.  MS concluded, with respect to fitness to plead — a matter which was not in issue before the judge — that the applicant’s presentation and results of neuropsychological testing raised serious concerns regarding his competency, and indicated that he was unfit to plead.  It was the witness’s opinion that

when considered collectively, [the applicant’s] cognitive limitations suggest that he would be unable to adequately understand the nature of the charges, follow the course of the trial, understand the substantial effect of any evidence given against him and inform his legal team on how to proceed.[60]

[60]Mr M Staios, Neuropsychological Assessment Report (14 April 2016), 7 [29].

1. AD disagreed with that conclusion.  In her report, she discussed seriatim the matters which are relevant to assessment of fitness to stand trial.  AD’s opinion, to parts of which the judge referred in her sentencing remarks, led the expert to the conclusion that:

[The applicant] has an understanding of the nature of the charges against him. He had a very basic understanding of what it means to enter a plea of guilty (and the consequences thereof); and he understands the role of the jury. [The applicant] has as [sic] simple understanding of the nature of a trial, and the roles of the different people in court. His level of cognitive impairment does not preclude him from being able to follow the course of the trial with the benefit of breaks, the presence of a support person from his legal team, as well as consideration of his hearing difficulties. A support person could check that [the applicant] has heard and understand the dialogue in court and explain when necessary what has been spoken in simple and straightforward terms. It may be necessary for participants in court to turn and face [the applicant] when they speak. [The applicant] has a fundamental understanding of the concept of evidence, although he struggles to articulate abstract concepts per se. Finally, he has an adequate ability to instruct his counsel. Taken together, it is my opinion that [the applicant] is fit to stand trial as defined by Section 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act, 1997 at this time.[61]

[61]Dr A Davidson, Psychological Court Report (16 August 2016), 6-7 [33], tendered as Exhibit P5 on the plea.

1. It is very clear, from the language there used by AD, that the expert was not travelling beyond a conclusion that, given his cognitive disability, the applicant was nonetheless, in the language of the statute, fit to plead.

1. Had there been a persisting debate as to the applicant’s fitness to plead, and had that issue fallen for determination only upon the reports of MS and AD, the latter’s more detailed report might well have been considered the more persuasive.  But that was not the issue which the judge had to determine on the plea.

1. AD’s report, though not compiled for that reason, supported a conclusion that the applicant knew that his offending was wrong.  I pause to note that this was specifically not a matter put in issue by applicant’s counsel on the plea.  Other than that, the report, quite understandably, did not address issues of moral culpability or general and specific deterrence.  Only incidentally did it touch upon the burden of imprisonment, and not in a Verdins context.

1. The report of MS, on the other hand, in addition to addressing the question of fitness to plead, dealt briefly with a potential relationship between the applicant’s cognitive impairment and Verdins considerations.  Quite properly, in light of O’Connor,[62] MS did not attempt, in his report, to usurp the judge’s role.  Rather, he postulated a reduced ability on the applicant’s part to control impulses; and he postulated that the applicant’s cognitive deficits had likely resulted in (a) reduced understanding of social cues, and (b) inappropriate levels of intimacy and sexual behaviours.

   [62][2014] VSCA 108.

1. To submit, as the applicant did, that the two reports were relevantly to the same effect, in my opinion, misstated the position.  As I have attempted to explain, the report by MS expressed a conclusion, absent detailed reasoning, with respect to fitness to plead, whilst the report of AD dealt in detail with the fitness to plead issue.  The latter’s report, on the other hand, said nothing directly about Verdins considerations, whilst the report of MS made several specific observations in that connection.  In all, for understandable reasons, the reports did not fully align in their subject matter.  It cannot be said that the two reports coincided with respect to Verdins considerations.  Nor can it be said that AD’s report implicitly agreed with what MS reported in that connection.

1. As I have noted, the applicant’s submissions — and here I refer both to the written and oral submissions — further complained that the judge reached a conclusion (with respect to Verdins matters) without seeking that the experts be called.  It is true that the judge made no such request, but no fault should be imputed to her Honour in reaching a conclusion in the absence of the witnesses being called.  In the course of the plea, her Honour closely questioned applicant’s counsel with respect to his Verdins submissions.  When counsel submitted that the applicant’s capacity to appreciate the extent to which his offending was wrong was ‘necessarily limited by his cognitive deficiencies’, the judge indicated that she would not accept the submission, and referred to AD’s report.  Further, when counsel made a submission with respect to the burden of imprisonment, the judge again referred to AD’s report as indicating the basis for a contrary conclusion.

1. In all, the judge made her position clear.  Whilst her Honour did not comment on each aspect of counsel’s submissions with respect to Verdins, she certainly indicated areas where she was not minded to accept the opinion of MS.  In those circumstances, it was for counsel to have applied to call MS if he wished to develop the matter further.

1. As I have also earlier noted, another aspect of counsel’s submission was that the judge erred by not seeking additional psychological or psychiatric evidence.  In my opinion, that submission could not be accepted.  Neither counsel submitted that further opinion was required.  The most that was done was that applicant’s counsel pointed out that the reports of MS and AD had been obtained for a different purpose.

1. The final aspect of the applicant’s principal written submission was that the prosecutor, in more than one respect, had not opposed the application of Verdins.  Certainly, it is true that the prosecutor did not address every aspect of the Verdins submissions advanced for the applicant.  But the prosecutor did raise Verdins both at the outset and in reply.  At the outset, the prosecutor accepted that the reports of MS and AD identified intellectual deficits.  But she pointed out a number of matters which nonetheless impacted upon the applicant’s moral culpability.  She mentioned circumstances which indicated that the applicant had taken steps to make sure that he was not caught.  She referred to the applicant’s understanding, reported to AD, that his offending was wrong.  She referred to the sentence imposed upon the applicant in 1999 and his later re-offending.

1. The prosecutor completed this part of her submissions by saying:

So that whilst the prosecution doesn’t say this is not a relevant matter to sentencing, it clearly is, the prosecution says that the extent to which Your Honour makes a finding that it impacts on his moral culpability is affected by those matters.[63]

[63]Plea Transcript, above n 13, 23 lines 7-12.

1. In reply, the prosecutor returned to Verdins:

Your Honour, in relation to the issues concerning moral culpability and Verdins and so forth, I did want to also point out, Your Honour, that in Dr Davidson’s discussions with him, he did, to an extent, give an explanation of all this that would appear to be a wilful exercise in blaming complainants to some extent, in paragraphs 20 and 21, Your Honour.  That really – those explanations that he gives there must be wilful and are clearly false, and it’s submitted do also reinforce that he does understand – he did and does understand the significance of all of this, the wrongness of it, and he engaged in it nevertheless.[64]

[64]Plea Transcript, above n 13, 57 lines 10-21.

1. In all, the extent to which the prosecutor conceded that Verdins principles might have some application was extremely limited.

1. Specific submissions aside, in my opinion the principal problem confronting the applicant’s overall contention that the judge erred by not finding that some Verdins principles were engaged is this:  it may be that other judges, provided with the opinion of MS, and noting the qualified way in which AD described the applicant’s performance at interview, would not have perceived the incongruity between that opinion and the applicant’s offending and life experience which the judge detected.  But, the judge having made it clear that she was not minded to accept the opinion of MS, there the matter was left to rest.  The only course, I think, that could have arrested the situation — and it is a matter of speculation whether it would have done so — was for applicant’s counsel below to have called MS.[65]  That did not happen.  In those circumstances, I cannot say that the judge erred by finding that no Verdins principle was engaged.  She concluded that the circumstances of and surrounding the offending, and the applicant’s life history, gave the lie to there being any causal link between the applicant’s impairment and his offending.  The path of reasoning was orthodox, and the conclusion tenable.  The judge’s further conclusion, with respect to the ‘burden of imprisonment’ was not very persuasive, but even there I cannot say that it reveals error.

   [65]And perhaps AD.

1. Finally, I should say this.  Notwithstanding the objectively shocking nature of the applicant’s offending, and notwithstanding the judge’s conclusion as to absence of a causal link between that offending and his cognitive impairment, in my view there was a basis for the judge moderating general deterrence as a sentencing consideration on the ‘common humanity’ basis which has been discussed in the authorities.  Counsel for the applicant raised this matter on the plea.  The judge did not distinctly address it.  But in the overall sentencing synthesis, I consider that the judge’s failure to do so could not be regarded as material.

Ground 2

Submissions for the applicant

1. In writing, applicant’s counsel submitted that the sentences imposed were manifestly excessive, given that —

(1)the applicant had pleaded guilty, which was of particular importance in a case of sexual offending against children;

(2)the sentence imposed evidently had not been moderated, contrary to what the judge had said she would do, to reflect the applicant’s age and ill-health;

(3)because of his age and ill-health, the risk that the applicant would re-offend was low.  The sentence did not reflect sufficient moderation on that account;

(4)the sentence imposed on charges 2, 6 and 7 was, in each instance, around 50 per cent of the maximum penalty at the time for the particular offence; and

(5)the sentences were inconsistent with current sentences practices.  Counsel referred to R v RLP,[66] R v AMP,[67] and Davies (a pseudonym) v The Queen.[68]

[66](2009) 213 A Crim R 461.

[67][2010] VSCA 48.

[68][2014] VSCA 69.

1. It was submitted that the sentence, viewed overall, offended principles of totality and parsimony.

1. Orally, counsel focused upon the applicant’s age and ill health as circumstances to which the judge must have accorded too little weight.  He referred to and relied upon the seven propositions concerning those matters stated in the R v RLP.[69]

   [69](2009) 213 A Crim R 461, 476 [39] (Neave and Redlich JJA and Hollingworth AJA).

Submissions for the Crown

1. It was submitted for the Crown in writing that —

(a)               the applicant was to be sentenced as a serious sexual offender on all charges;

(b)               all the offending was in gross breach of trust;

(c)               the offending on charges 2, 4, 6, 7, 8 and 9 was representative in nature;

(d)              the offending the subject of charges 8, 9 and 10 occurred after the applicant had been imprisoned for similar offending;

(e)               the penile/vaginal intercourse was unprotected thus allowing for the possibility of impregnation or the transmission of sexual disease;

(f)                the plea of guilty was late, in fact, entered just before trial and after the complainants had bene cross-examined at committal;

(g)               the applicant had, it seems, when the other offending for which the applicant was sentenced in 1999 is taken into account, offended over an extensive period of time and apparently without much in the way of break or cessation;

(h)               the offending was non-consensual;

(i)                there was no remorse; and

(j)                no benefit was to be accorded for delay in the sense that during the delayed period the applicant had become rehabilitated.

1. In elaboration of matter (b), the Crown’s submissions adverted to the youth and vulnerability of the victims, who became, it was put, the applicant’s ‘sexual playthings’.

1. With respect to the applicant’s age and ill-health, it was contended that the judge had evidently turned her mind to the prospect that, by imposing a sentence of the magnitude which she did, there was serious doubt that the applicant might ever have a future in the community.  It was clear enough that the judge had concluded that to impose any lesser (overall) sentence would involve the imposition of a penalty that was disproportionately low.

1. With respect to the submission that the applicant’s risk of re-offending was low by reason of his age and ill-health, the Crown pointed to the fact that, even in his 60s, the applicant had re-offended.  At some point, no doubt, the applicant would be wholly incapacitated by age from engaging in offending conduct, but when that point might be reached was not apparent.

1. With respect to the sentences of seven years’ imprisonment which were imposed on charges 4, 8 and 9, the Crown submitted that, although they represented about 50 per cent of the maximum penalties applicable at time of offending, the judge had approached the matter in accordance with this Court’s decision in Stalio v The Queen.[70]  It must be remembered also, the Crown submitted, that each of those offences was a representative charge, for which reason the applicant could not rely upon it having been an isolated incident.  Moreover, the representative character of the offences enabled the judge to assess the offending in its full context.[71]

   [70](2012) 46 VR 426, see especially 443-5 [69]-[77] (Neave and Osborn JJA and King AJA).

   [71]Reference was made to DPP v CPD (2009) 22 VR 533, 542-4 [36]-[44] (Maxwell P, Redlich JA and Robson AJA).

1. Next, it was submitted for the Crown that an analysis of the decisions of this Court relied upon by the applicant to demonstrate alleged inconsistency with current sentencing practices did not show anything of the sort.  It was accepted that the total effective sentence imposed upon the applicant was ‘perhaps the second-highest of its kind, ranking underneath RSJ v The Queen,’[72] where the total effective sentence was 22 years and 5 months’ imprisonment with a non-parole period of 18 years.  But the fact that the total effect sentence imposed upon the applicant was, comparatively, a very high one did not mean that it was manifestly excessive.  It was a product of the base sentence taken together with the orders for cumulation.

   [72][2012] VSCA 148.

1. There could be no legitimate complaint, it was submitted, about the base sentence.  So, then, attention need be focused on the orders for cumulation.  The applicant was sentenced on all charges as a serious sexual offender.  Full cumulation was to be presumed.  Totality could not be given its full effect.  In fact, the judge made substantial orders for concurrency, so as to best address the totality issue.

1. Orally, counsel highlighted the sentences imposed on charges 4, 8 and 9.  She submitted that the sentences on those charges were, in effect, modest.  Charge 4 was representative of many offences, whilst charges 8 and 9 involved offences committed after the applicant had been imprisoned for sexual offending against another young person.

Analysis

1. In my opinion, the submissions for the Crown, which I have set out in some detail, cogently explain why neither the individual sentences nor the orders for cumulation which resulted in the total effective sentence could be regarded as falling outside the sound exercise of the sentencing discretion.  The judge approached the matter in accordance with the approach dictated by decisions of the High Court and this Court, and the salient circumstances were as the Crown outlined them.  It would be otiose simply to repeat the circumstances to which the Crown’s written submissions drew attention.

1. There was force, I should add, in the Crown’s oral submission with respect to the sentences passed on charges 8 and 9.  They were charges of incest, each a representative charge, and involved conduct subsequent to the applicant’s imprisonment for sexual penetration of a child aged between 10 and 16 years.  The maximum penalty for the offence being in each instance 25 years’ imprisonment, it seems to me that the sentences which the judge imposed reflected some moderation having regard to totality considerations.

1. The only matter with respect to sentence that has caused me pause is the length of the non-parole period which the judge fixed.  It was about 76 per cent of the head term.  It is wrong to speak in terms of an ‘ordinary’ or ‘usual’ non-parole period being this or that percentage of a head term.  But in the present case, as it seems to me, there was definitely an argument of substance that the applicant’s age, ill-health, and his cognitive impairment — for all that the judge was not satisfied that a causal link with the offending had been established — collectively dictated the imposition of a shorter non-parole period than the judge fixed in fact.  But, first, it is not necessarily the case that age and ill health will play a large role in the sentencing synthesis.  In RSJ v The Queen,[73] it was explained why they did not do so in the particular case; and second, there is a point at which a non-parole period would simply reflect too low a proportion of the head sentence to be acceptable in principle.

[73][2012] VSCA 148 [2]-[3] (Redlich JA), [44] (Hansen JA).

1. In any event, the question is not whether a shorter non-parole period might have been fixed.  It is whether the period which the judge in fact fixed was manifestly excessive.  Viewed in that way, I cannot conclude that the judge erred.

Orders

1. As I have said earlier, I would refuse the applicant leave to appeal against his sentence on both grounds 1 and 2.

REDLICH JA:

1. I agree with Ashley JA.

TATE JA:

1. I have had the benefit of reading, in draft form, the reasons of Ashley JA.  I agree, for the reasons his Honour gives, that leave to appeal against sentence should be refused.