Langton (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0046

LEVI LANGTON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identifying the victims 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:	MAXWELL P, McLEISH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2022
DATE OF JUDGMENT:	4 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 79
JUDGMENT APPEALED FROM:	[2022] VCC 221 (Judge Ryan)

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CRIMINAL LAW – Leave to appeal – Sentence – Extension of time – Fresh evidence – Sexual offending against stepdaughter and niece – No psychological or neuropsychological reports produced for plea – Total effective sentence of 11 years and 8 months’ imprisonment – Non-parole period of eight years – Psychological and neuropsychological reports produced for subsequent plea on separate indictment – Impaired mental functioning identified – Whether evidence requires different sentence to avoid miscarriage of justice – Extension of time granted – Leave to appeal refused.

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Counsel
Applicant:		Ms E Clarke
Respondent:		Mr C Boyce QC
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
MCLEISH JA
MACAULAY JA:

On 17 February 2017, a jury convicted the applicant of:
(a)two charges of incest;[2]
(b)one charge of committing an indecent act with a child under 16;[3]
(c)two charges of assault;[4] and
(d)one charge of causing serious injury recklessly.[5]
[2]Crimes Act 1958 s 44(1) (‘Crimes Act’).
[3]Ibid s 47(1).
[4]Contrary to the common law.
[5]Crimes Act s 17.
These charges related to offending against the applicant’s stepdaughter, between 1996 and 2005, when she was between 8 and 17 years old.
There was also a second indictment, which related to earlier offending against the applicant’s niece, between 1986 and 1989, when she was between 7 and 11 years old. A few days after his conviction on the first indictment, the applicant pleaded guilty to the charges in the second indictment, namely:
(a)two charges of indecent assault;[6]
(b)one charge of sexual penetration of a child under the age of 10 years;[7] and
(c)
one charge of sexual penetration of a child between the ages of 10 and

16 years.[8]
[6]Ibid s 44(1).
[7]Ibid s 47(1).
[8]Ibid s 48(1).
On 23 February 2017, there was a plea hearing for both sets of convictions. No psychological or neuropsychological reports were commissioned or filed on the applicant’s behalf. On the plea, the applicant’s counsel did not submit that the applicant suffered impaired mental functioning. To the contrary, counsel described the applicant as having a ‘reasonable level of intellect’, despite being relatively uneducated.
On 3 March 2017, the judge sentenced the applicant to a total effective sentence of eight years and eight months’ imprisonment on the first indictment, and six years and six months’ imprisonment on the second, with three years of the latter sentence to be served cumulatively on the former. This produced a total effective sentence of 11 years and 8 months’ imprisonment.[9] A non-parole period of eight years was imposed.
[9]DPP v Langton (a pseudonym) [2017] VCC 221 (‘First Sentencing Remarks’).
In 2020, the applicant pleaded guilty to a charge of sexual penetration of a child under 16 years, which was contained in a third indictment.[10] This time, the victim was the daughter of a family friend. The offence occurred in 1999 or 2000, when she was 13 or 14 years old.
[10]Crimes Act s 49B.
Ahead of the plea hearing for that matter, and unlike the earlier plea hearing, the applicant’s lawyers commissioned reports from a psychologist, Dr Dion Gee, and (on Dr Gee’s recommendation) a neuropsychologist, Ms Laura Scott. These reports identified that the applicant had impaired mental functioning. In particular, it was stated that the applicant, while not meeting the criteria for intellectual disability, has an extremely low IQ, and a number of cognitive and behavioural impairments of uncertain cause.
Ms Scott opined that those impairments were ‘likely significant contributors’ to the applicant’s offending. Dr Gee, on the other hand, considered there not to be a direct causal link between the applicant’s impairments and his offending, allowing only that the impairments may have ‘predisposed’ the applicant to aberrant behaviour.
In sentencing the applicant on the third indictment, the judge accepted Ms Scott’s evidence.[11] The judge accepted that the applicant’s impairments enlivened the first, third and fourth limbs of R v Verdins (‘Verdins’).[12] She considered that the impairments reduced the applicant’s moral culpability and moderated the need for specific and general deterrence, to a modest degree.
[11]DPP v [Langton] [2020] VCC 1495 [61]–[63] (Judge Riddell) (‘Second Sentencing Remarks’).
[12](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
On the third indictment, the judge sentenced the applicant to two years and eight months’ imprisonment, 10 months of which was cumulated on the sentence on the first and second indictments. There is no challenge to this sentence.
However, the applicant now seeks an extension of time in which to seek leave to appeal his sentence on the first and second indictments.[13] He seeks to raise a single proposed ground: that the judge sentenced the applicant while unaware of the impaired mental functioning which contributed to his offending, and that this gave rise to a miscarriage of justice.
[13]The applicant seeks an extension of time exceeding four years.
For the reasons that follow, the application for an extension of time will be allowed, but leave to appeal will be refused. In short, the evidence which the applicant now seeks to rely on does not persuade us that any different sentence should have been imposed, because it does not establish a realistic connection between the applicant’s impairments and the offending in question.

Extension of time

The application for an extension of time was supported by an affidavit affirmed by the applicant’s solicitor on 27 April 2021. That affidavit explains that the reports of Dr Gee and Ms Scott, which form the basis for the proposed application for leave to appeal, were received by the applicant’s former solicitors in August 2020, for the purposes of the plea hearing on the third indictment. After those reports were received, the solicitors ceased acting and the applicant’s present solicitors assumed carriage of the matter. They requested materials relating to the plea hearing in respect of the first and second indictments. The relevant materials, which revealed that no psychological or neuropsychological reports had been sought or relied upon at that hearing, were received by early February 2021. An application for legal aid was promptly made, and funding was approved on 7 April 2021. In the meantime, counsel had prepared the documents necessary to seek leave to appeal, including a written case. The application for leave to appeal was filed on 27 April 2021, shortly after the applicant’s solicitor returned from a period of leave.
In Barber v The Queen, the Court set out the principles applicable to the grant of an extension of time as follows:
The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time. In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it. In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material. Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion.[14]
[14]Barber v The Queen [2018] VSCA 232 [3] (Kyrou and Kaye JJA) (citations omitted).
In the unusual circumstances of this case, the delay has in our opinion been satisfactorily explained. It is in the interests of justice that the significance of the expert reports to the sentence on the first two indictments be considered by this Court. We therefore grant the extension of time.

Fresh evidence

In R v Nguyen, Redlich JA (with whom Maxwell P and Neave JA agreed) summarised the relevant principles concerning the admission and consideration of evidence on appeal of matters that emerge after a sentence is imposed:
[T]his Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[15]
[15][2006] VSCA 184 [36]–[37] (citations omitted).
It was common ground between the parties that the evidence in the present case is of a matter, namely the identification of the applicant’s mental impairments, that has emerged since sentence was imposed. It was also common ground that the impairments predated the sentence on the first and second indictments. At least by the time of the hearing in this Court, it was also common ground that the evidence of the impairments may be received by the Court.[16]
[16]See, eg, Ahmed v The Queen [2005] VSCA 279 [11]–[17] (Charles JA, Callaway JA and Ashley JA agreeing at [21] and [22]); Wilson v The Queen [2018] VSCA 219 [43]–[44] (Maxwell P, Priest and Niall JJA).
We are prepared to proceed on the basis that the events which have occurred since the sentence was imposed are the formation of the expert opinions as to the applicant’s psychological condition, and that evidence of those opinions demonstrates the significance of that condition as it existed when the sentence was imposed.[17] As such, the evidence consisting of the reports of Ms Scott and Dr Gee will be admitted as fresh evidence on the application for leave to appeal.
[17]Ibid.
The question becomes whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

Submissions

The focus of the dispute between the parties was whether the fresh evidence ‘throws significant new light on the pre-existing facts’ such that is capable of causing this Court to doubt the appropriateness of the sentence.
The applicant submitted that Ms Scott’s report was a critical development. There had been no exploration of the applicant’s cognitive functioning on the plea. Ms Scott’s report identified a number of relevant matters unknown to the sentencing judge, including that the applicant presented with:
(a)an IQ of 70, falling in the extremely low range, and indicating a low level of overall functioning falling short of an intellectual disability;[18]
(b)clear signs of ‘dysexecutive syndrome’, being moderate to severe impairments in aspects of executive function, including abstract concept formation, mental flexibility, response inhibition, impulse control, and planning and organisation;[19]
(c)mild impairments of mediation attentional skills, including general knowledge, recall of unrelated verbal information, and higher attentional skills;[20] and
(d)evidence of poor self-regulation.
[18]The applicant did not meet the diagnostic criteria for an intellectual disability because he demonstrated adequate basic adaptive skills, and tested within the low average and average ranges for a number of relevant functions.
[19]A function was described as moderately or severely impaired where the applicant tested for that function at or below the bottom percentile.
[20]A function was described as mildly impaired where the applicant tested within the first and third percentiles.
Ms Scott opined that among the likely effects of these impairments would be that the applicant would have:
(a)a poor appreciation of the potential outcomes or consequences of his actions, in particular their impacts on others;
(b)an impeded ability to appreciate emotions, and to consider a situation from diverse perspectives;
(c)difficulty preventing himself from acting on impulse, particular where disinhibited, including by intoxication; and
(d)perseverative tendencies, being the tendency to repeat prior actions despite negative consequences in the past.
Ms Scott concluded that the applicant’s impairments were ‘likely significant contributors’ to his offending behaviour. While they did not deprive the applicant of an understanding of the wrongfulness of his actions, they would have ‘reduce[d] his capacity to make reasoned decisions and appropriate judgments in the moment’.[21]
[21]To the extent that Dr Gee expressed the contrary opinion, that opinion should, it was said, be accorded little weight. His report was a ‘starting point’, concluding with the recommendation that the applicant be neuropsychologically assessed.
Ms Scott’s evidence, the applicant submitted, not only cast new light on existing facts, but revealed a significant new fact — that the applicant’s mental functioning was relevantly impaired. This fact assumed significance in the second sentencing remarks, which dealt with similar offending to that in the first and second indictments. In those remarks, the judge accepted that the applicant’s cognitive impairments enlivened the first, third and fourth Verdins limbs. She accepted that the applicant’s moral culpability was reduced and that specific and general deterrence were modestly moderated.[22] The applicant’s moral culpability was reduced because, despite his recognition that his conduct was wrong, his deficits in executive function meant he was less able to resist impulses to engage in that conduct or to recognise its consequences.[23]
[22]Second Sentencing Remarks [60]–[63].
[23]Ibid [55]–[56].
The applicant submitted that Dr Gee, who was not a specialist neuropsychologist, had identified the ‘likely presence of a degree of neurocognitive compromise in the form of a specific learning disorder and/or a neurocognitive disorder-mild’, and considered that a more comprehensive assessment was required. This had then been undertaken by Ms Scott, with the results set out above. In this way, the applicant relied almost exclusively on the report of Ms Scott.
The applicant submitted that the cognitive issues identified by Ms Scott, especially his reduced capacity to make reasoned and appropriate judgments and resist inappropriate impulses, reduced his moral culpability. The difficulties under which he laboured meant that the significance of general and specific deterrence was to be moderated. Counsel submitted that, given that the applicant’s offending had been ‘situational’, and he had not offended for many years before being first sentenced, he presented a low risk of reoffending. The need to protect the community was therefore outweighed by the moderation demanded by the Verdins principles.
In response, the respondent submitted, first, that Ms Scott’s opinion as to the effects of the applicant’s impairments was tentative and speculative. For example, she identified a series of behaviours the applicant ‘would be expected to demonstrate’ as a result of his impairments. Similarly, she identified symptoms which ‘might’ reduce the applicant’s ability to account for the perspective of his victims or perceive the impacts of his actions.
Secondly, although she was provided with the first judge’s sentencing remarks, Ms Scott did not relate her opinion to the offending the subject of those remarks with any specificity. She opined generally that the applicant’s impairments were ‘likely significant contributors’ to his offending behaviour but without relating that conclusion to any particular offending.
Thirdly, Ms Scott’s report suffered, as she acknowledged, from a significant limitation in that the applicant continued to deny any offending, especially that which was the subject of the third indictment (to which her report was directed).
Fourthly, Ms Scott’s opinion that the applicant’s impairments were ‘likely significant contributors’ to his offending behaviour sat uneasily with the opinion of Dr Gee that there did not appear to be a ‘direct causal nexus’ between his impairments and offending.
In any event, the respondent contended that, even if accepted, Ms Scott’s report ought not cause this Court to doubt the appropriateness of the sentence. Any reduction in the applicant’s moral culpability and moderation of specific and general deterrence by reason of the identified impairments would be offset by the increased importance of community protection. In fact, were the sentencing discretion to be reopened, there would be every possibility that a higher sentence ought to be imposed, reflecting the intervening uplift in sentences for incest.[24]
[24]See DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428.

Analysis

It is convenient to set out the first, third and fourth of the Verdins principles said to be engaged by the fresh evidence.
1.[Impaired mental functioning] may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
…
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[25]
[25](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (citation omitted).
The application of these principles demands a rigorous examination of the evidence.[26] Where reliance is placed on the first principle, concerning moral culpability, the question for the Court is whether the evidence establishes on the balance of probabilities that the impairment of mental functioning contributed to the offending in such a way as to render the offender less blameworthy for the offending than would otherwise have been the case. This is generally (but not always) treated as an issue of causation, namely whether there is a causal link or connection between the impairment of mental functioning and the offending.[27] But it may also be sufficient that there is a realistic connection between the two, without necessarily establishing causation.[28]
[26]DPP v O’Neill (2015) 47 VR 395, 412 [68] (Warren CJ, Redlich and Kaye JJA) (‘O’Neill’); Brown v The Queen (2020) 62 VR 491, 507–8 [61]–[62] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA) (‘Brown’).
[27]Carroll v The Queen [2011] VSCA 150 [20] (Maxwell P, Buchanan JA agreeing at [70]); Tran v The Queen (2012) 35 VR 484, 490–1 [18]–[21] (Maxwell P and Neave JA).
[28]Charles v The Queen (2011) 34 VR 41, 70 [162] (Robson AJA, Redlich JA and Harper JA agreeing at 42 [1] and [2]); O’Neill (2015) 47 VR 395, 414–15 [74].

In the context of general and specific deterrence, the question will be whether the offender’s impairment has such an effect on their mental capacity, and in particular their capacity to moderate their behaviour, that general or specific deterrence should be moderated or eliminated as a sentencing consideration.[29] Again, this requires some ‘realistic connection’ or ‘causal link’ between the impairment and the offending.[30]
[29]Verdins (2007) 16 VR 269, 276 [32]; O’Neill (2015) 47 VR 395, 414–15 [74]; Brown (2020) 62 VR 491, 512 [83]–[85].
[30]O’Neill (2015) 47 VR 395, 414–15 [74]; Brown (2020) 62 VR 491, 512 [82]–[85].
In our opinion, the evidence in this case falls short of establishing the necessary link or connection.
In the first place, Ms Scott’s report was directed at the offending in the third indictment (which the applicant denied to her having committed). It is clear that she was aware of the offending the subject of the present application and had read the first judge’s sentencing remarks. However, the report did not address that offending further. It is noteworthy, in this regard, that the offending the subject of the third indictment took place after the applicant had been ‘drinking excessively’.[31] That was not the case with the sexual offending charged in the first two indictments.[32]
[31]Second Sentencing Remarks [5].
[32]The applicant was alleged to have been drinking heavily before committing the common assaults in the first indictment. These were said to have occurred after his stepdaughter and a friend had refused his request for a kiss. The sentencing judge made no reference to the preceding consumption of alcohol in the First Sentencing Remarks.
Secondly, the report contained a caveat that the test results recorded might underestimate the applicant’s ‘true level of cognitive functioning due to cultural and linguistic factors as well as his very limited exposure to formal schooling’.
Thirdly, and consistently with this caveat, when Ms Scott came to consider the relationship between the applicant’s condition and the offending, and the ‘likely significant’ contribution of his cognitive and behavioural impairments to that offending, her conclusions were heavily qualified. In particular, she stated that in ‘real-world settings’ the applicant ‘might be able to prevent himself [acting] on impulse in certain situations though not at all times’ She went on to explain that he ‘would be at risk of [impulsive] behaviours, particularly when there are other factors lowering his inhibitions (eg intoxication)’.
These observations fall well short of identifying a causal link or realistic connection between the relevant offending and the applicant’s impairments. At most, they identified a risk of impulsive behaviour, exacerbated by intoxication, while acknowledging that the applicant might still be able to prevent himself from acting on impulse. It is impossible to draw any useful conclusion about the likelihood of impulsive behaviour being an explanation for sexual offending which took place when the applicant was not intoxicated.
Fourthly, and similarly, Ms Scott only identified a ‘risk’ of the applicant repeating behaviour despite negative consequences of similar behaviour in the past. She gave the example of repeated inappropriate conduct despite the intervention of family members. There is no suggestion that this description was addressed to the present offending. Rather, it seems directed to the offending in the third indictment, which took place despite some family interventions that had occurred in the course of prior offending. In any event, this ‘risk’ was unquantified, and seems to relate to the applicant failing to recognise what is in his own interests, rather than revealing a reduced moral culpability.
Fifthly, Ms Scott referred to the applicant’s somewhat rigid and inflexible thinking, and his reduced capacity to appreciate abstract concepts such as risk and emotions, and to connect current actions with future consequences. She opined that these symptoms ‘might’ reduce his ability to take the victim’s perspective into account, and to appreciate the impact of his actions, especially their emotional effects. Again, this conclusion has a speculative quality. In any event, Ms Scott made it clear that these factors would not be expected to diminish the applicant’s ‘ability to understand the wrongfulness of his actions.’ They would only ‘reduce his capacity to make reasoned decisions and appropriate judgments’.
The offending the subject of the first and second indictments involved repeated sexual offending against young girls — the applicant’s stepdaughter and niece — while they lived in houses in which the applicant either resided or was staying. Many offences on both indictments involved the applicant going into his victim’s bedroom and forcing her to submit to sexual activity over her objections. With one qualification, nothing in Ms Scott’s report identifies a realistic connection between such deliberate and repeated conduct and the cognitive and behavioural impairments she identified, still less a causal link. At best, those impairments might have reduced his capacity to take the victim’s perspective into account, but without diminishing his ability to understand the wrongfulness of his conduct. The applicant’s ‘risk of impulsive behaviours’, if such offending merits that characterisation, is, in any case, to be set against the conclusion that he ‘might’ be able to prevent himself acting on impulse.
The qualification is that Ms Scott did conclude that the applicant’s failure to appreciate a victim’s perspective and his somewhat rigid thinking would reduce his capacity to make reasoned decisions and exercise appropriate judgment. However, given that she stated plainly that he still understood that his actions were wrongful, we do not consider that this conclusion points to any diminution in his moral culpability in this case.
In our opinion, the fresh evidence discloses no satisfactory basis upon which the applicant’s moral culpability for the offending in the first two indictments could be said to be reduced. Equally, no basis is revealed for moderating the significance of general or specific deterrence.
We note that our conclusions in this regard align with those of the sentencing judge in respect of the third indictment, who allowed only ‘modest’ moderation and considered that the applicant was an ‘appropriate vehicle for deterrence’.[33] That conclusion was reached against the background of Ms Scott having made her ‘likely significant’ contribution finding with regard to the subject offending, and the prosecution having conceded that Verdins principles one, three and four were enlivened accordingly. As noted, there was no such finding or concession in respect of the offending subject to the first and second indictments.
[33]Second Sentencing Remarks [62]–[63].
It follows that the fresh evidence upon which the applicant relies does not throw significant new light on the pre-existing facts so as to cause us to doubt the appropriateness of the sentence imposed. We therefore refuse leave to appeal.
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[2022] VSCA 79

4 May 2022