Nuramin v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0142
S EAPCR 2022 0174

MOHAMMED NURAMIN	First Applicant
AND
RAHAMUTALLAH RAHAMUTALLAH	Second Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2024
DATE OF JUDGMENT:	31 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 117
JUDGMENT APPEALED FROM:	DPP v Rahamutullah & Ors (County Court of Victoria, Judge Carlin, 10 September 2021)

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CRIMINAL LAW – Appeal – Sentence – Supply of drug of dependence to a child – Sexual penetration of a child under 12 – Sexual assault of a child under 16 – Applicants and third co-offender supplied cannabis to two complainants (aged 11 and 12) and sexually penetrated and sexually assaulted 11 year old complainant – Applicants guilty of supplying drug of dependence to a child (two charges), sexual penetration of a child under 12 (seven charges), and sexual assault of a child under 16 (two charges) – Co-offenders sentenced to same sentences on all charges with different orders for cumulation – Orders for cumulation to reflect individual culpability – Whether two-stage sentencing – Whether judge erred in giving insufficient weight to first applicant’s time in immigration detention and intellectual disability – Whether judge breached parity principle in imposing sentence less disparate from other co-offenders – Appeal allowed – First applicant resentenced to 10 years and 6 months’ imprisonment with a non-parole period of 6 years and 3 months.

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 12 – Second applicant digitally penetrated 11 year old complainant – Whether judge erred in assessment of second applicant’s moral culpability on basis that second applicant was organiser of all sexual activity – Leave refused.

Drugs, Poisons and Controlled Substances Act 1981, s 71B(1); Crimes Act 1958, ss 49A(1), 49A(3), 49D(1), and 49D(2A); Criminal Procedure Act 2009, s 280; Sentencing Act 1991, ss 5(2G), 5A, 5B, 6D, 6E, 6F, 11A.

Sahhitanandan v The Queen [2019] VSCA 115, applied; Muldrock v The Queen (2011) 244 CLR 120, considered.

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Counsel
First Applicant:		Ms G Connelly
Second Applicant:		Mr T McCulloch
Respondent:		Ms E Ruddle KC
Solicitors
First Applicant:	Greg Thomas Barrister and Solicitor
Second Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Some procedural history

Proposed grounds of appeal

Circumstances of the offending

Reasons for sentence

Personal circumstances

(a)          Rahamutallah
(b)          Nuramin
(c)          Hason

Objective gravity of offending

Moral culpability

(a)          Rahamutallah
(b)          Nuramin
(c)          Hason

Current sentencing practices

Victim impact

Pleas of not guilty and remorse

Character and risk

Other mitigating factors

Sentencing purposes

This application

Nuramin – Proposed grounds 1 and 2

Legal principles

Consideration

Nuramin – Resentence

Cumulation

Rahamutallah

EMERTON ACJ
T FORREST JA:

Introduction

The applicants, Nuramin and Rahamutallah,[1] with a co-offender Hason, were jointly charged in relation to events that occurred in December 2018. Following a trial in April 2021, these men, all in their 20s, were convicted by a jury of supplying cannabis to two children, ‘Daisy’[2] and ‘Katie’[3], aged 11 and 12 respectively. They were also convicted of various charges relating to sexual assaults on and sexual penetrations of Daisy. They were sentenced in September 2021.[4] The table below sets out the sentencing details of all three co-offenders.
[1]Various spellings have been used in various documents filed in Rahamutallah’s proceedings. We adopt the spelling used on the application for leave to appeal to this Court.
[2]A pseudonym.
[3]A pseudonym.
[4]DPP v Rahamutullah & Ors (County Court of Victoria, Judge Carlin, 10 September 2021) (‘Reasons’).

Charge	Offence	Maximum	Sentence	Cumulation
Indictment C1912407.1				MN[5]	RR[6]	NH[7]
1	Supply of drug of dependence to a child[8] (‘Daisy’)	15 years	6 months	1 month	1 month	1 month
2	Supply of drug of dependence to a child (‘Katie’)	15 years	6 months	1 month	1 month	1 month
3	Sexual penetration of a child under 12[9] (‘Daisy’)	25 years	7 years	7 months	8 months	1 year
4	Sexual penetration of a child under 12 (‘Daisy’)	25 years	8 years	Base
5	Sexual assault of a child under 16[10] (‘Daisy’)	10 years	3 years	3 months	4 months	4 months
6	Sexual penetration of a child under 12 (‘Daisy’)	25 years	8 years	5 months	6 months	6 months
7	Sexual penetration of a child under 12 (‘Daisy’)	25 years	8 years	6 months	1 year	1 year
8	Sexual penetration of a child under 12 (‘Daisy’)	25 years	8 years	5 months	6 months	6 months
9	Sexual penetration of a child under 12 (‘Daisy’)	25 years	8 years	5 months	6 months	6 months
13	Sexual penetration of a child under 12 (‘Daisy’)	25 years	7 years	4 months	6 months	6 months
14	Sexual assault of a child under 16 (‘Daisy’)	10 years	3 years	3 months	4 months	4 months
MN
TotalEffectiveSentence:		11 years and 4 months’ imprisonment
Non-ParolePeriod:		6 years and 9 months
Pre-Sentence Detention:		242 days
RR
TotalEffectiveSentence:		12 years and 6 months’ imprisonment
Non-ParolePeriod:		7 years and 6 months
Pre-Sentence Detention:		753 days
NH
TotalEffectiveSentence:		12 years and 10 months’ imprisonment
Non-ParolePeriod:		7 years and 8 months
Pre-Sentence Detention:		968 days
MN,NN and RR
Section6AAAStatement:		N/A
Otherrelevantorders:		Pursuant to s 6F of the Sentencing Act 1991, sentenced as a serious sex offender in respect of charges 5, 6, 7, 8, 9, 13, and 14. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is 15 years.

[5]Mohammed Nuramin.

[6]Rahamutallah Rahamutallah.

[7]Noor Hason.

[8]Contrary to s 71B(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[9]Contrary to s 49A(1) of the Crimes Act 1958.

[10]Contrary to s 49D(1) of the Crimes Act 1958.

Some procedural history

Nuramin’s original appeal against conviction was allowed in part by this Court,[11] however, a subsequent appeal by the respondent from this Court to the High Court was successful. The High Court set aside this Court’s orders (including our sentencing orders) and ordered in lieu that Nuramin’s appeal against conviction be dismissed and his appeal against sentence be remitted to this Court for rehearing. In doing so, the High Court effectively restored Nuramin’s position after Judge Carlin’s sentence but before his original sentence appeal to this Court.
[11]Nuramin v The King [2022] VSCA 215.
While Nuramin’s application for special leave was on foot, Rahamutallah applied to this Court for leave to appeal against both conviction and sentence. An extension of time in which to lodge his appeal was granted administratively. Upon the respondent’s success in the Nuramin High Court appeal, Rahamutallah abandoned his application for leave to appeal against conviction.
Both applications for leave to appeal are therefore against the original sentences imposed by a judge of the County Court.

Proposed grounds of appeal

Nuramin seeks leave to appeal on two proposed grounds:
Ground 1 — The learned sentencing judge erred in not having regard to two relevant matters in mitigation, namely the applicant’s time spent in immigration detention and the applicant’s intellectual deficits, in determining the sentences for the individual charges.
Ground 2 — The learned sentencing judge breached the principle of parity in imposing individual sentence[s], a total effective sentence and non-parole periods less disparate from those of the co-offenders than was reasonably open in all the circumstances.
Rahamutallah seeks leave to appeal on a single proposed ground:
Ground 1: The learned sentencing judge erred in her assessment of the objective gravity of charge 3 and consequently in the assessment of the applicant’s moral culpability for that conduct.

Circumstances of the offending

We shall briefly summarise the circumstances of the offending.
(a)On a Sunday in December 2018, Daisy was 11 years old and Katie was 12. Both children were in state care living at a residential unit in the northern suburbs of Melbourne. At that time, Nuramin was 21 years old, Rahamutallah was 22 years old and Hason was 28 years old.
(b)It seems that Katie met Rahamutallah some time earlier through her father. Katie had Rahamutallah’s mobile phone number; she called him that Sunday and arranged to meet him. Both Katie and Daisy understood that they were going to drink alcohol and smoke cannabis.
(c)Later that evening Daisy and Katie left their residential unit and, as arranged with Katie, walked to a service station to meet Rahamutallah.
(d)Between 10.54 pm and 11.07 pm there were several calls between Rahamutallah’s and Katie’s mobile phones. At 11.10 pm, Rahamutallah drove into the service station with Nuramin as a passenger, called out to Katie and the children got in his car. Rahamutallah then drove to the Werribee share house (where Nuramin and Hason also lived) talking to Nuramin in their own language, while the girls drank alcohol.
(e)At the Werribee share house, the children were taken by Rahamutallah to a shed at the back of the property. They were joined by Hason and Nuramin. The group sat on chairs and cans while one or more of the three co-offenders cut up cannabis and rolled it in into joints. They provided them to both children to smoke (Charges 1 and 2).
(f)The group then moved to sit on a mat on the floor. Rahamutallah wrapped his arms around Daisy and hugged her. She tried to push him away. He kissed her on the neck and lips and pinched and touched her breasts. Daisy resisted and asked him to stop; however, he persisted. He also rubbed his foot against her vagina, on the outside of her clothes. He then put his hands down the front of Daisy’s pants and played with her vagina. He inserted his finger into her vagina and pushed it in and out. She continued to push him away (Charge 3).
(g)Daisy got up and walked to Nuramin. She sat on his lap. The other men and Katie were still present. Nuramin spoke to his two co-offenders in another language before telling them in English to leave. Rahamutallah, Hason and Katie left the shed.
(h)Nuramin took off his pants and undressed Daisy. He kissed her lips, neck and cheek, and told her to sit down. He then put his unprotected penis in her mouth, grabbed the back of her head and pushed his penis in and out until he ejaculated in her mouth (Charge 4). He then sucked her vagina (Charge 5). He told her to lie down and inserted his (again) unprotected penis into her vagina. He had penile/vaginal sex with her for several minutes (Charge 6). Daisy started crying and calling for help. Nuramin placed his hand over her mouth.
(i)Rahamutallah, Hason and Katie returned to the shed. They went out as a group to purchase more alcohol. They returned to the Werribee shed and consumed more alcohol and cannabis.
(j)After a while, Hason took Daisy to a white van parked in the street. Daisy thought he was taking her to buy more cannabis and put on her seatbelt, but he unclipped her belt and pulled her into the back of the van, shut the window curtains and lay her down on the floor. He then had unprotected penile/vaginal sex with her (Charge 7). She was unsure if he ejaculated. He then told her to sit up and inserted his penis into her mouth, making her suck it (Charge 8). She spat his penis out and told him she was only 11 years old. He replied, ‘That’s okay’ and reinserted his penis into her mouth until he ejaculated (Charge 9).
(k)It was decided at some stage to take the children back to their state care accommodation and they did so. Rahamutallah drove while Nuramin sat in the back with Daisy. Again, Nuramin sexually assaulted her. He touched her breasts, rubbed the inside of her external genitalia and made her suck his fingers afterwards (Charge 13). He took her hand and placed it inside his pants, compelling her to rub his penis (Charge 14).
(l)The children were returned to their unit at about 5.30 am. They were observed to be intoxicated. Daisy made complaints as to the sexual offending to various carers and workers the next day.

Reasons for sentence

After plea hearings, the applicants were sentenced on 10 September 2021. The details of the sentences have been set out in para [1]. Relevantly to Nuramin’s application, it will be apparent that his pre-sentence detention (‘PSD’) was declared to be 242 days, whereas Hason’s PSD was declared to be 968 days. This disparity can be explained in this way:
(a)Hason spent his entire time from arrest on 16 January 2019 to sentence on remand — 968 days.
(b)Rahamutallah spent 224 days in immigration detention and 753 days on remand before sentence.
(c)Nuramin spent 731 days in immigration detention and 242 days on remand before sentence.
These periods are relevant to Nuramin’s proposed ground 1.
The judge sentenced all three co-offenders in a single sentencing exercise. After setting out the jury verdicts, her Honour observed that the jury had acquitted the men of offences alleged to have been committed against the 12-year-old Katie. This disparity, the judge commented, was ‘entirely explicable on the evidence’.[12] We interpose that neither applicant argues for inconsistent verdicts. The judge, having observed that each offender was convicted of the same set of charges, commented:
What that means is that the jury must have accepted the prosecution argument that the three of you had reached an agreement, understanding or arrangement to supply cannabis to the two girls and then engage in sexual activity, including penetrative activity, with them.[13]
This reasoning is unexceptional.
[12]Reasons, [3].
[13]Reasons, [5].
The judge then set out the circumstances of the offending in similar terms to those in para [7] of these reasons. She then turned to the offenders’ personal circumstances.[14] We shall summarise these.
[14]See Reasons, [24]–[62].

Personal circumstances

(a)Rahamutallah

•At the time of sentence he was 25 years old. A Rohingya, he was born in Northern Myanmar and, along with his parents and siblings, was subject to persecution and exposed to serious conflict.
•In 2012, when he was 16, his village was razed, and people were captured and tortured. He managed to escape, leaving his family behind. He travelled to Thailand, Malaysia, Indonesia and then by boat to Australia arriving in early April 2013 where he was placed in immigration detention. At the end of 2013, he had settled in Melbourne at the Werribee share house referred to earlier. Many other residents of Rohingya or Indian descent lived there, including Nuramin and Hason.
•He completed secondary school and then enrolled in English and Business Studies at Victoria University. At some point he was granted a bridging visa. He worked at various farms before finding work at a welding factory, where he worked until his arrest.
•His immediate family live in a refugee camp in Bangladesh, save for a brother who lives in Indonesia and two cousins in Australia.
•He was remanded in custody following his arrest in January 2019 and his bridging visa was cancelled shortly thereafter. On remand, he had no contact with his family. The trial judge granted him bail to reside in immigration detention in September 2020, to which he was returned when bail was revoked following the jury’s verdict in April 2021. In immigration detention, he was able to have some phone contact. At the date of sentence, he had not spoken to his family for months.
•He had no prior criminal history, either in Australia or elsewhere. There is no evidence that he suffers from any substance abuse or mental health issues.
(b)Nuramin

•At the time of sentence, he was 24 years old, born in Malaysia to Rohingya refugees. He was premature and suffered developmental delays.
•He was denied access to education in Malaysia and instead worked from a very young age and supplemented the family’s income. In 2013, when he was about 15, he and his family undertook the hazardous boat journey from Indonesia to Australia. After several months in immigration detention, his family were given bridging visas and relocated initially to Adelaide and, two years later, to Melbourne.
•He attended secondary school but struggled and left after year 10. He has worked in various manual jobs since. He bought into a Jim’s Mowing franchise in the week before his arrest.
•Prior to the offending he was close to his family and supported them financially. He has eight siblings, practises the Muslim religion and has a large friendship circle. He mainly lived with his family but sometimes moved for work. At the time of the offending, he lived in the Werribee share house.
•He denies drug or alcohol issues.
•He denies any current or previous mental health issues, although he did report one instance of self-harm in 2013 following the end of a relationship.
•His protection visa application states he suffers from a heart condition and fainting spells but the only medical records referenced on the plea indicate a likely diagnosis of migraine with aura.
•He was remanded in custody after arrest on 12 January 2019, his bridging visa was cancelled on 12 February 2019 and he was granted bail in the Magistrates’ Court to reside in immigration detention on 29 April 2019. He remained in immigration detention until verdict on 29 April 2021, when he was again remanded in custody.
•He was able to have some contact with his family whilst in immigration detention but this was no longer possible after returning to custody on remand.
•Reports were tendered from clinical psychologist Alice Crole and from Dr Rachel O’Meara, a neuropsychologist, who assessed him for about two and a half hours in late January 2020.
•Ms Crole assessed him as ‘naïve and cognitively, psychologically and emotionally immature for his stated age’. He was a poor historian, struggled to understand simple concepts even through an interpreter, and did not appear to understand the gravity of his situation. She noted his mother’s comments that despite his strict upbringing he at times needed additional guidance on the difference between right and wrong. She recommended neuropsychological testing, having identified ‘a possible cognitive impairment’.
•Dr O’Meara commented that Nuramin’s cultural and linguistic background, and his limited education, prevented full testing, including an IQ assessment, and thus precluded a formal diagnosis of intellectual disability. The judge summarised and quoted a part of O’Meara’s report:[15]
[15]Reasons, [46].
As it happens, Dr O’Meara considered your level of functioning in the community prevented you from meeting the criteria for a diagnosis of intellectual disability, in any event.[16] That is, despite your cognitive impairment you have, said Dr O’Meara:
[16]According to Dr O’Meara formal diagnosis of intellectual disability requires both a full-scale IQ score of less than 70 and evidence of impaired adaptive functioning as was the case, for example with the appellant in Muldrock v The Queen 244 CLR 120, [42].

‘demonstrated a reasonable ability to cope…. in [your] everyday functioning such that [you have] been able to maintain employment, successfully live with friends (without close support from [your] family) and independently carry out activities of daily living (e.g. personal care, domestic responsibilities and caring for [your] siblings).’[17]
[17]Dr Rachel O’Meara, Neuropsychological Report (Mohammed NURAMIN, 5 February 2020) p 14.

That said, Dr O’Meara noted that your various task performances suggested a global cognitive impairment not explicable by cultural, language and educational factors alone. Given your known history, she believed your low cognitive functioning reflected a longstanding and permanent neurodevelopmental condition, associated with complications at your birth, albeit not necessarily an acquired brain injury from oxygen deprivation.[18] Whilst your IQ is unknown, Dr O’Meara considered your cognitive functioning to be at the level of a mild intellectual disability.
[18]See ibid, Mr Nuramin’s cognitive profile was ‘not highly typical’ of such a brain injury.
(c)Hason

•At the time of sentencing he was 31 years old. He was born in Rakhine State, Myanmar and was the third of four siblings. His family suffered from discrimination but were close knit and within a strong community network. He recalled oppression and episodic violence in and around his hometown, seeing dead bodies and losing a 14 year old friend to the violence.
•At 13 he was taken by the Burmese military and forced into a labour camp. For two years, he was abused and beaten by the military.
•He worked for approximately ten years in a local motorcycle repair shop and then fled Myanmar in 2013 at age 23. He came to Australia and after a time in immigration detention at Christmas Island he was transferred to Darwin, then Queensland, before finally settling in Melbourne.
•He is the only member of his family in Australia. His father works in Malaysia and he believes his mother and siblings are refugees in Bangladesh. He has kept in contact with his father by phone but he has not had any contact with, or information about, his other family for years.
•In Australia, he has worked as a labourer and farm picker. He has not received any formal education and was illiterate in all languages until he had some English language education whilst on remand. At the time of the offending, he was living in the share house in Werribee with Rahamutallah and Nuramin.
•He denies any alcohol or substance abuse.
•He told consultant psychologist Ian Mackinnon that he had never had a sexual encounter prior to the offending and did not have any strong attraction to underage girls.
•Mr Mackinnon thought it likely that he suffered from Mixed Anxiety and Depression Disorder at the time of his offending and assessment. He had no mental health history but gave Mr Mackinnon a history of anxiety and depression for years, largely related to concern for his family and ‘historical difficulties’. Mr Mackinnon thought this condition did not have any significant role in the offending.
•His cognitive functioning and intelligence were within normal range and, according to Mr Mackinnon, he appeared to understand the difference between right and wrong. He told Mr Mackinnon that at the time of the offending he did not know that it was against the law to have sex with a 12 year old girl, as in Myanmar girls who menstruate got married.
•Unlike Rahamutallah and Nuramin, he never sought bail and was in custody from the time of his arrest. His visa was cancelled.
•He has taken advantage of his time in prison to participate in English classes, sport and fitness training and other educational units and programs.

Objective gravity of offending

The judge concluded that, for all offenders, these were at least mid-range examples of serious offences. In this, her Honour noted:
(a)There was a degree of planning and premeditation — the judge found that the offenders all agreed to supply drugs and alcohol to the girls for an ulterior purpose, namely the facilitation of sexual activity.[19]
(b)The victims were vulnerable because they were young and in the company of three adult men who they knew barely, or not at all. The offending took place late at night and far from home with no means of transport other than with the offenders. The victims were completely dependent on the offenders for their emotional and physical safety.[20]
(c)The offenders failed to protect the victims and exploited Daisy’s vulnerability for their own sexual gratification. They knew she was intoxicated with drugs and alcohol yet took turns to engage in sexual activity with her, mostly when separated from her friend.[21] Her Honour noted that ‘[t]he range and circumstances of [the] activity, which included digital, oral, and unprotected penile penetration, was not only potentially corrupting for an 11 year old child but carried risks of pregnancy and sexually transmitted diseases’,[22] and they did this ‘without any regard for Daisy’s wishes or her welfare’.[23]
(d)The activity involved force and occurred in spite of Daisy’s resistance and distress. This, the judge said, was not to punish the men for a crime they did not commit, such as rape, but ‘it is to acknowledge that “the circumstances, method and mode of [the charged activity are] clearly relevant matters to be taken into account as part of the sentencing synthesis”’.[24]
(e)The fact that Daisy was one month shy of her 12^th birthday, and had the offending occurred one month later, the offenders would have been subject to a much lower maximum penalty for the penetration offences, did not convert the offending to low-range seriousness, as had been contended by defence counsel. Daisy was nearly 12 and the age disparity was in the order of 10 to 17 years.[25]
[19]Reasons, [65].
[20]Reasons, [66].
[21]To avoid double punishment, the judge treated knowledge of the victims’ intoxication as an aggravating feature of the sexual offending, but not the causing of that state: see Reasons, fn 14.
[22]Reasons, [67].
[23]Reasons, [68].
[24]Reasons, [68] citing Holland v The Queen [2018] VSCA 241, [45].
[25]Reasons, [69].
The judge regarded the digital penetration as less objectively serious than the oral or penile penetrations.[26]
[26]Reasons, [70].
On the issue as to whether the objective gravity varied between the three offenders, the judge said this:[27]
[27]Reasons, [72]–[80].
In relation to the drug offences even though the precise role each of you played is not known, since you were together at the time and your motivation was the same, I regard you as equally culpable.
In relation to the sexual offending the position is not so straightforward as you were not necessarily present or aware of precisely what each other was doing at any moment, although I am satisfied that you all knew that sexual activity was occurring throughout the night in accordance with your agreement. I was informed that the prosecution is not aware of any analogous case, or at least not one in which a sentence has been imposed to date.
I have considered whether there should be a distinction between you based on your participation in the individual offences. I have concluded that you all bear equal responsibility for each sexual offence, no matter whether you were the actual perpetrator or not. The reasons are as follows.
First, the law is clear that the relative culpability of co-offenders is not necessarily defined by their physical role in the crime.[28]
[28]DPP v SJK & GAS [2002] VSCA 131 at [47].
Secondly, although you, Mr Rahamutullah, were the actual perpetrator in only one of the sexual offences your overall role was significant. You were the organiser and facilitator of the night. You were the one who knew Katie and arranged to collect her and Daisy on the night. You drove your car to pick them up and you also dropped them off. You introduced the girls to your friends and allowed your home to be used for the offending.[29] You were also the first person to sexually offend against Daisy and you did this despite her resistance and whilst your co-offenders were present, making it obvious that she could not look to them for help. You effectively set the scene for what was to come, albeit you played no active role in any sexual offending thereafter.
[29]Mr Rahamutallah being the long-term resident.
Thirdly, consistent with the jury verdict, I am satisfied that everything that occurred on the night, no matter who did it, was within the bounds of your agreement and within the reasonable contemplation of you all. You all engaged in sexual activity with Daisy despite her resistance. At no stage did any of you indicate any disapproval or reticence or seek to withdraw from the agreement. To the contrary you all remained enthusiastic participants until the end.
Fourthly, in circumstances where most sexual offences were committed by one of you in the absence of the other two, any attempt to distinguish between you based on your individual roles in an offence would be extremely artificial, if not impossible. Further, to do so would not be reflective of the agreement you had all reached.
Finally, I am satisfied that there is no significant difference between your moral culpability for the events of that night, which I regard as high for all of you. In particular:
•whilst you, Mr Rahamutullah, were the organiser, Mr Nuramin and Mr Hason, you both got on board very quickly and became eager participants;
•there is no evidence that any one of you exerted influence over any other;
•there was no relevant difference in your respective states of mind as to the age of Daisy, that being you all knew she was very young and were at least reckless as to her precise age; and
•there is no other reason to distinguish between your respective moral culpabilities for the offending.
Of course, to say that you all bear equal responsibility for each sexual offence regardless of your individual role does not mean that your sentence will necessarily be the same, as that depends on the circumstances and mitigating factors personal to each of you.

Moral culpability

As to as individual culpabilities, the judge found:
(a)Rahamutallah
•The judge rejected Rahamutallah’s assertion that he believed Daisy was 16.[30]
[30]Reasons, [82].
•The judge rejected the further assertion that Rahamutallah believed that, at the time of the offending, he and Daisy were in some kind of relationship[31] and noted that in any event, a child’s agreement to sexual activity with an adult is not, of itself, a mitigating factor ‘and in the circumstances of the case it could never be’.[32]
[31]Reasons, [83].
[32]Ibid citing Clarkson v The Queen (2011) 32 VR 362, 364–5 [4]–[7].
•Despite there being no psychological report, the judge considered that Rahamutallah’s childhood experiences in Myanmar, similar to Hason’s, were relevant to sentence in a general way but had no appreciable impact on her assessment of his moral culpability, which she regarded as high.[33]
[33]Reasons, [84].
(b)Nuramin
•In considering defence counsel’s submission that Nuramin’s reduced cognitive functioning impacted his ability to have insight into his offending or see the consequences of his actions, the judge noted that the psychological report of Ms Crole and the neuropsychological report of Dr O’Meara were written for purposes relating to admissibility of his police record of interview and fitness to plead, not Nuramin’s role in the offending. Dr O’Meara had nonetheless proffered the opinion that he was ‘able to demonstrate understanding of the wrongfulness of the alleged crimes and why such acts are illegal’.[34] The judge further found that Nuramin’s record of interview made it ‘perfectly clear [he] knew it was wrong to participate in sexual activity with an 11 year old girl’.[35]
[34]Reasons, [89].
[35]Reasons, [90]–[93].
•The judge stated that she accepted Dr O’Meara’s opinion as to Nuramin’s level of cognitive functioning and that it has ‘some bearing on [his] moral culpability and is relevant to sentence in a general way’.[36] The judge then said, however, that ‘in the absence of evidence as to how [his] cognitive deficits relate to the offending, I am unable to find that they have any significant mitigatory effect. This is especially so given [his] apparently reasonable adaptive functioning and [his] appreciation of the wrongfulness of [his] conduct.’[37]
[36]Reasons, [94].
[37]Ibid.
•The judge did not accept that Nuramin believed Daisy was 16.[38]
[38]Reasons, [93].
•The judge distinguished Nuramin’s position from that of the appellant in Muldrock v The Queen[39] who had not only a low IQ but also impaired adaptive behaviour.[40] Further, in that case there was evidence of a causal relationship between the impairment itself and the offending.[41] The judge noted that this causal nexus may not always be necessary, as the High Court stated in Muldrock.[42]
•The judge concluded ‘not only did [he] play a major role in the events of the night, [his] moral culpability is also high’.[43]
(c)Hason
•The judge noted that Hason offended even after Daisy specifically told him her age.[44]
•Defence counsel relied on Hason’s significant history of trauma and persecution as a child and young adult in Myanmar as justifying a reduction in moral culpability in accordance with the principles in Bugmy v The Queen.[45] The judge stated that whilst in that case the High Court did disavow the notion that the effects of profound deprivation diminish over time, in the circumstances of the present case she was not satisfied that Hason’s early history had any significant bearing on his moral culpability in a causal sense, noting that Mr Mackinnon did not attribute Hason’s offending in any way to his experiences in Myanmar and that it was difficult to see a connection.[46] Her Honour stated that this history is relevant to sentence in a general way, and that, in relation to all offenders, she would take these matters into account in mitigation.[47] She regarded Hason’s moral culpability, like the applicants’, as high.[48]

Current sentencing practices

[39]Muldrock v The Queen (2011) 244 CLR 120 (‘Muldrock’).

[40]Ibid 135 [42], 138 [51].

[41]See ibid 139, [55].

[42]Reasons, [94]. See Muldrock (2011) 244 CLR 120, 139 [55]–[56].

[43]Reasons, [95].

[44]Reasons, [96].

[45](1990) 169 CLR 525.

[46]Reasons, [97].

[47]Reasons, [98].

[48]Ibid.

In respect of the sexual offending, the judge noted that since 1 February 2018, the offences of sexual penetration of a child under 12 and sexual assault of a child under 16 have been standard sentence offences, with the standard sentences for offences of mid-range objective seriousness set at 10 and 4 years respectively, and with a presumed minimum non-parole period of 60% of the head sentence. Further, for offences subject to the standard sentence regime, only sentences subject to that regime may be considered (ie offences committed after 1 February 2018), resulting in a lack of sentencing statistics and few comparable cases.[49] In the event, the prosecutor referred to four relevant decisions of this Court and five County Court decisions, as well as several decisions relating to the supplying of drug of dependence to a child offence, however her Honour found they were all ‘quite dissimilar in terms of circumstances of offending and offender’ and that ‘ultimately [her] duty is to impose a just and appropriate sentence in the unique circumstances of the case’.[50]

Victim impact

[49]See s 5B(2)(b) of the Sentencing Act 1991.

[50]Reasons, [99]–[103].

No victim impact statements were received by the court, but there was a legal presumption that premature sexual activity causes serious long-term physical and emotional harm.[51] In this, the judge rejected counsel’s submission that Daisy was not traumatised by the events of the night because she said she wanted to go back the next night. The judge noted that Daisy’s exact words were ‘I don’t care, I want weed’ and that she had said no one would buy it for her due to her age. The judge said the fact that an 11 year old girl in Daisy’s situation may not have appreciated the harm caused to her is not surprising and in no way rebuts the legal presumption of harm. Rather, it highlights the need to protect children from themselves and immature judgment.[52]

Pleas of not guilty and remorse

[51]Reasons, [104] citing ss 5(2)(daa), (da) and (db) of the Sentencing Act 1991 and Clarkson v The Queen (2011) 32 VR 361, 368 [26], 371 [33]; Adamson v The Queen [2015] VSCA 194, [56].

[52]Reasons, [105]–[106].

The judge correctly noted that as all co-offenders had pleaded not guilty they did not get the benefit of a discount for a plea of guilty.[53]
[53]Reasons, [107].
Her Honour rejected the submission of counsel for Nuramin that she should find a degree of remorse within the bounds of his limited insight based on admissions in his record of interview and an offer to plead guilty to some charges prior to trial. In so doing, the judge pointed to Nuramin’s later denial of any sexual contact to Dr O’Meara and the way Nuramin conducted his case — seeking to have his interview excluded, cross-examining the complainant and pleading not guilty to all charges at trial. Further, her Honour found that his portrayal of Daisy as the sexual aggressor in his interview was hardly indicative of remorse.[54]

Character and risk

[54]Reasons, [108].

All co-offenders were considered to be of otherwise good character.[55] None had prior convictions.[56] All three were considered to have reasonable prospects of rehabilitation.[57]

Other mitigating factors

[55]Reasons, [109].

[56]Ibid.

[57]Reasons, [110]–[111].

Her Honour dealt with other mitigating factors as they related to all co-offenders.
(a)There was a delay of over two years from charge to verdict. One year is directly relatable to the effects of COVID 19.[58]
(b)Each offender faced an uncertain future which included ‘the very real prospect’ of deportation and future time in immigration detention.[59] This would ‘add significantly to the burden of imprisonment’.[60]
(c)Her Honour noted that Rahamutallah had spent 224 days in immigration detention as a direct consequence of being charged and Nuramin had spent 731 days so detained. Hason spent his time purely in custody on remand (934 days). The judge stated that she would deal with the time spent in immigration detention ‘in a broad and practical way’ as set out in Sahhitanandan v The Queen.[61] In other words, the sentences would be reduced and how much credit they received would depend not only on the length of their detention but the nature and severity of the restrictions to which they were subjected.[62] Her Honour observed that she had little information about the circumstances of immigration detention save that Rahamutallah and Nuramin were both housed together in a special unit that accommodated alleged sex offenders and that they were allowed to use unmonitored mobile phones and certain electronic devices.[63] Her Honour noted that if not for the fact they could be bailed to reside in immigration detention, it is likely bail would have been refused and they would have spent the whole time on remand. In such circumstances, the judge stated that she intended to give ‘significant weight to [their] time in immigration detention’.[64]
(d)Her Honour also observed that she would give some mitigatory weight to both applicants for the additional burden of imprisonment arising from isolation from family and prison structures during the pandemic.[65] The judge also stated that insofar as Nuramin was concerned, she took into account that prison would be harder for him because of his cognitive deficits and language difficulties.[66]

Sentencing purposes

[58]Reasons, [113].

[59]Reasons, [114] citing DPP v Za Lian [2019] VSCA 75, [108].

[60]Ibid.

[61]Reasons, [115] citing Sahhitanandan v The Queen [2019] VSCA 115, [32] (‘Sahhitanandan’).

[62]Reasons, [115].

[63]Ibid.

[64]Reasons, [116].

[65]Reasons, [117]–[118].

[66]Reasons, [119].

The judge then rehearsed the purposes of sentencing set out in s 5 of the Sentencing Act 1991.[67] She noted that where there are multiple offences the total effective sentence must not offend the principle of totality.[68]
[67]Reasons, [120].
[68]Ibid.
Her Honour noted that in this case the sentencing principles were qualified:
(a)By s 5(2G) of the Sentencing Act 1991 which requires the imposition of a custodial sentence on the charges of sexual penetration of a child under 12.[69]
(b)By the standard sentencing provisions which applied to the sexual penetration of a child under 12 charges (10 years) and the sexual assault of a child under 16 charges (4 years).[70]
(c)By the operation of s 6F of the Sentencing Act 1991 which requires that in imposing sentences from Charge 5 onwards all offenders were to be sentenced as serious sexual offenders which, pursuant to s 6E, therefore gave rise to a statutory presumption of cumulation of the individual sentences.[71] The judge observed that ‘[t]he more serious the overall offending the more the presumption operates to moderate the principle of totality’.[72] Further, being sentenced as a serious sexual offender also meant that from Charge 5 onwards the judge was required to consider protection of the community as the principal sentencing purpose.[73]
The judge further noted that the prosecution did not submit that a disproportionate sentence was necessary to protect the community and her Honour was of the view that she ‘had enough sentencing discretion’ to achieve the purpose of community protection without imposing a disproportionate sentence.[74] She indicated that there would be substantial concurrency of sentences ‘to avoid a crushing and wholly disproportionate sentence’.[75]
[69]Reasons, [121].
[70]Ibid. See also ss 49A(3) and 49D(2A) of the Crimes Act 1958 and s 5B of the Sentencing Act 1991.
[71]Reasons, [121], [152].
[72]Reasons, [121] citing DPP v Bales [2015] VSCA 261, [38] ff; Mush v The Queen [2019] VSCA 307, [89]–[91].
[73]Reasons, [121]. See also s 6D of the Sentencing Act 1991.
[74]Reasons, [122].
[75]Reasons, [123].
Her Honour then said:[76]
The sentencing principles for sexual offences against children have been often discussed. This is because such offending is all too common. The paramount sentencing considerations are general deterrence and denunciation. Those who are tempted to offend against children should know they will be punished severely. The sentences imposed should not only vindicate the individual victims, but also the values of society, ‘fundamental to which is the protection of its children’.[77] Less important, but still relevant in this case is the need to deter each of you from doing anything similar again and protect the community from you.
[76]Reasons, [125] (emphasis in original).
[77]DPP v Toomey [2006] VSCA 90 at [17] and [22] per Vincent J.
Insofar as rehabilitation prospects were concerned, the judge said:
Although the importance of rehabilitation in the sentencing equation declines as the seriousness of the offence increases, it is by no means extinguished in this case, especially since you are all still relatively young men. Your uncertain future is not a reason not to allow for your rehabilitation and I intend to allow for it by the setting of a minimum term. In my view the presumed 60 per cent is appropriate.[78]
[78]Reasons, [126]. As to the presumed 60%, see Sentencing Act 1991, ss 5A and 11A as discussed at Reasons, [100]–[101] summarised at [16] above.
Finally, the judge returned to the question of equal justice as between the offenders. Given its relevance to proposed grounds 1 and 2 of this application, we will set out the entire passage:
There is only one other matter to mention before I pass sentence upon you and that is how my sentence will reflect your different mitigating factors. As I have already said I regard you as each equally culpable for the offending on the night. Your personal circumstances are, as it happens, similar. You have all come from disadvantaged backgrounds and all suffered deprivations in your life. You all have the burden of an uncertain future. The main distinguishing features are Mr Rahamutullah and Mr Nuramin’s time in immigration detention and Mr Nuramin’s intellectual deficits. One way to recognise those differences would be by imposing different sentences for each offence, but I have taken the view that the easiest and most transparent way is by different orders for cumulation.[79]
[79]Reasons, [127].
The offenders were then sentenced in accordance with the table set out in para [1] herein.

This application

It is apparent from the passage set out immediately above that the judge intended the distinguishing mitigating factors, as between co-offenders, to be reflected in the orders for cumulation, and not to recognise them in the sentences imposed for each individual offence. Whilst this is a practical and transparent way to achieve an outcome, it is contrary to s 5(2G) of the Sentencing Act 1991 and to the instinctive synthesis principle. It also involves two-stage sentencing.
In discussion on the application for leave to appeal, counsel for the respondent accepted that if her Honour did ignore such factors such as intellectual deficits and time spent in immigration detention in individual sentences, but rather took appropriate account of time in orders for cumulation, then whilst sentencing error may well be demonstrated, s 280(1)(b) of the Criminal Procedure Act 2009 would operate to save the sentences as there is no reasonable prospect that this Court ‘would reduce the total sentence despite there being an error in the sentence first imposed’.
We shall return to s 280 later in these reasons.

Nuramin – Proposed grounds 1 and 2

These proposed grounds are linked and can be considered together. The effect of the proposed grounds is that the applicant (Nuramin) contends that his time spent in immigration detention and his intellectual deficits were given insufficient weight in the sentencing calculus and this can be demonstrated by comparison to the other sentences passed on the co-offenders. Looked at another way, had these factors been given sufficient weight, Nuramin’s sentence would be significantly more disparate than it was from the co-offenders’ sentences.

Legal principles

Time spent in immigration detention can be considered by a sentencing judge in a ‘broad and practical way’ reflecting the fact that an offender has been deprived of his or her liberty. It is not, however, the exact equivalent of PSD. In Sahhitanandan, on this issue, the Court said:[80]
The question is then, what account is to be taken of a period spent in immigration detention? As already noted, it was held in Underwood that the fact of such detention must be recognised in a ‘broad and practical way’ in the sentence imposed, reflecting the fact that the offender has been deprived of his or her liberty during the relevant period.[81] That formulation drew upon the judgment of Brooking JA (with whom Winneke P and Hampel AJA agreed) in R v Heaney,[82] where a period in remand which was outside the terms of an earlier version of s 18(1) was taken into account ‘in a broad way’.[83]
[80]Sahhitanandan [2019] VSCA 115, [32] (Priest, McLeish and Weinberg JJA).
[81]Underwood (a pseudonym) v The Queen [No 2] [2018] VSCA 87, [37] (Priest and McLeish JJA).
[82]Victorian Court of Appeal, 27 March 1996, 6.
[83]Underwood (a pseudonym) v The Queen [No 2] [2018] VSCA 87 [34]–[35] (Priest and McLeish JJA). See also R v Renzella [1997] 2 VR 88, 96, 98 (Winneke P, Charles and Callaway JJA).
A little later in the judgment, after considering the relevance to cases involving immigration detention of the manner in which this Court approached the issue of credit for time spent in a residential rehabilitation facility in Akoka v The Queen,[84] the Court said:
Unlike time spent in a residential facility, immigration detention is time spent in custody. On the other hand, unlike residency at a rehabilitation facility, no part of the purpose of immigration detention is punitive. This may mean that in practice the burden of immigration detention is less onerous than the burden of incarceration in a prison. However, again, each case will depend upon its circumstances. The ways in which both immigration detention and prison may be experienced are many and varied. Those in custody might have more or less freedom to mix with others or to move about within the facility. They might be accommodated with persons who are dangerous, or in a safer environment. But in the absence of evidence before a sentencing judge as to the nature of the burden of immigration detention, the judge will have no basis for distinguishing immigration detention from any other form of custody.[85]

Consideration

[84][2017] VSCA 214.

[85]Sahhitanandan [2019] VSCA 115, [36] (Priest, McLeish and Weinberg JJA) (citations omitted) (emphasis added).

In this case, as we have observed, the judge noted that Nuramin had spent 731 days in immigration detention. He was so detained as a direct consequence of having been charged. The judge observed that she had little information about the circumstances of immigration detention other than that the applicant appeared to have access to a mobile phone and other electronic devices which he could access without monitoring. Her Honour remarked that she intended to give significant weight to the time in immigration detention.[86]
[86]See [21(c)] above.
To evaluate in broad terms how much weight was accorded to Nuramin’s time in immigration detention, it is convenient to compare his position to Hason’s position:
•Their moral culpability was assessed to be equal and high.
•They were found guilty of the same offences.
•Their sentences on all charges were identical, although cumulation varied.
•Hason was seven years older.
•Hason was not bailed to immigration detention. PSD was declared at 968 days (rounded to 2 years and 8 months). Nuramin was arrested at approximately the same time. Had he not been placed in immigration detention, he also would have spent 2 years and 8 months on remand.[87]
•Hason received a total effective sentence of 12 years and 10 months’ imprisonment.
•Nuramin was sentenced to a total effective sentence of 11 years and 4 months’ imprisonment; 18 months less than Hason.
•All other things being equal, the fact that Nuramin’s head sentence is 18 months less than Hason’s must be attributable to the 731 days (2 years) Nuramin spent in immigration detention. Thus, on this basis, Nuramin had lost 25% or 6 months of PSD benefit in the ‘broad and practical’ conversion.
[87]The sum of Nuramin’s PSD and immigration detention is 973 days (rounded to 20 months).
Nuramin contended that he should have received either full or close to full benefit for his time in immigration detention as, apart from liberal access to mobile phones, there was little else to distinguish his circumstances from imprisonment on remand.
We consider there is some force to this contention. It is clear that Nuramin received some sentencing benefit for his 731 days in immigration detention (rounded to 2 years), but considerably less than a full benefit. It is not the exact equivalent of PSD, but Nuramin was deprived of his liberty in apparently quite stringent conditions for two years. For this, at the most, he received an 18-month sentencing benefit. There does not appear to be any solid evidentiary basis for this ‘discount’ other than that he may have had greater access to communication with the outside world, and to visits from his family.
It is unnecessary to determine whether this apparent 25% loss[88] bespeaks error as it was not the only factor that distinguished Nuramin’s position on sentence from that of Hason. Nuramin is intellectually disabled. We have summarised the judge’s findings on this aspect at para [15] of these reasons. It will be recalled that her Honour concluded that, in the absence of a causative link to the offending, Nuramin’s diminished cognitive functions had no significant mitigatory effect and that his moral culpability remained high.[89] Earlier, however, the judge stated that she accepted Nuramin’s level of cognitive functioning was diminished and that this had ‘some bearing on moral culpability and is relevant to sentence in a general way’.[90]
[88]See [35] above.
[89]Reasons, [94]–[95].
[90]Reasons, [94].
Neither Hason nor Rahamutallah are cognitively impaired. All co-offenders had endured a difficult early life in Myanmar and as refugees. This feature, common to all co-offenders, was also said to be relevant to sentence in a general way.[91]
[91]Reasons, [84], [97]–[98].
It seems to us that, if Nuramin’s time in immigration detention was given appropriate weight in the orders for cumulation and thus the total effective sentence, then his cognitive deficits were given virtually no weight at all. It is worth considering Dr O’Meara’s opinion in a little detail. Nuramin was referred to her by a clinical psychologist, Ms Crole, who observed apparent cognitive and psychological deficits. Dr O’Meara took a personal, social, educational, occupational and medical history. Nuramin reported longstanding cognitive difficulties, particularly with memory and multi-tasking. He rated his speed of information processing as slower than his peers and acknowledged difficulty with verbal impulse control. Dr O’Meara also considered a corroborative history of his neurodevelopmental condition from Nuramin’s mother, taken by Ms Crole.
Dr O’Meara conducted various tests to evaluate his various cognitive skills. Under the heading ‘General Intelligence/Verbal and Perceptual Skills’, Dr O’Meara concluded that:
Overall, performances on most tests of general intellectual functioning fell within the Extremely Low (immediate auditory attention span, attention to visual detail, and verbal and perceptual abstract reasoning) to Borderline (visuoconstruction skills, sequencing span, and psychomotor speed of information processing) ranges. Working memory span was stronger and only mildly below most age-matched peers (in the Low Average range).
Dr O’Meara’s opinion was set out at page 13 of her report:
Mr Nuramin performed severely below most age-matched peers (in the Extremely Low range) across a number of cognitive domains, including:
•Verbal and most perceptual intellectual skills (attention to visual detail and verbal and perceptual abstract reasoning).
•Word reading (in English)
•Immediate auditory attention span
•Aspects of higher order attention (attention to visual detail and verbal impulse control)
•Verbal speed of information processing
•New learning
•Incidental recall of detailed and less structured visual information
•Aspects of executive functioning (aspects of higher order attention and verbal and perceptual abstract reasoning)
Mr Nuramin performed moderately below most age-matched peers (in the Borderline range) on tests of:
•Visuoconstruction skills
•Sequencing span
•Psychomotor processing speed on novel tasks
•Delayed recall of detailed verbal information
In contrast, the below cognitive functions were relatively intact (in the Low Average range or above):
•Aspects of higher order attention (working memory span and attention shifting)
•Psychomotor processing speed on more familiar tasks
•Delayed recall of simple visual and repeated simple verbal information
•Retention of learnt information
Qualitatively, Mr Nuramin also demonstrated difficulty with more complex visual planning and organisation and sustained attention (which had a secondary impact on self-monitoring) across tasks.
Dr O’Meara concluded that Nuramin’s cognitive profile was ‘characterised by performances moderately to severely below most aged-matched peers across most cognitive domains’ but his capacity to learn from repetition was relatively intact, and he displayed strong retention of learnt information and adequate attention-shifting. His IQ was unable to be tested because of his culturally and linguistically diverse background. However, based on the tests administered, his cognitive function was ‘equivalent to someone with a mild intellectual disability’ and his cognitive strengths (eg ability to learn from repetition and retention of learnt information over time) were ‘highly typical of individuals with low IQ’. Dr O’Meara noted that formal diagnosis of intellectual disability requires evidence of impaired adaptive functioning and that based on the information currently available (ie that he has reasonable adaptive functioning and has been able to successfully maintain employment, live with friends and independently carry out activities of daily living), Nuramin did not meet the diagnostic criteria for an intellectual disability. Dr O’Meara thought it likely that his low cognitive functioning was reflective of neurodevelopmental complications at birth.
Nuramin’s low cognitive functioning was relevant to a number of factors in the sentencing mix. In Muldrock,[92] the High Court considered the position of an appellant whose cognitive disability was similar, but not identical, to that of Nuramin. In Muldrock — a case cited by the judge — the appellant had been sentenced for a sexual offence against a child. Muldrock’s IQ composite standard score (62) was indicative of a mild intellectual disability. Muldrock was sentenced in the New South Wales District Court to a high head sentence but with a very low minimum term. The latter was successfully appealed by the Crown. The Court of Criminal Appeal concluded that the finding by the sentencing judge that Muldrock was ‘significantly intellectually disabled’ was incompatible with the evidence of his ‘mild’ intellectual disability.[93] Muldrock clearly knew right from wrong and the minimum term was dramatically increased.[94] On Muldrock’s appeal, the High Court concluded that the Court of Criminal Appeal misapprehended what was meant by ‘mild intellectual disability’. The High Court went on to observe:[95]
[92](2011) 244 CLR 120.
[93]R v Muldrock [2010] NSWCCA 106, [27]–[28].
[94]Ibid.
[95]Muldrock (2011) 244 CLR 120, 138–9 [53]–[54].
Judge Black’s finding, expressed in lay terms, that the appellant’s intellectual disability is ‘significant’, was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Judge Black’s determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this[96]:
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
In the same case, Lush J explained the reason for the principle in this way[97]:
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
The principle is well recognised[98]. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence[99]. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
[96]R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VR 155 at 160.
[97]R v Mooney (unreported, Victorian Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VR 155 at 160–161.
[98]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476–477. See also R v Anderson [1981] VR 155; Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48.
[99]See R v Engert (1995) 84 A Crim R 67 at 71.

As we have observed, at one stage in her reasons the judge concluded that Nuramin’s cognitive deficits had no significant mitigatory effect. This was apparently due to Nuramin’s reasonable adaptive functioning and appreciation of the wrongfulness of his conduct and the fact that no causal nexus between the deficits and the offending had been established.
We are of the view that Nuramin’s cognitive deficits ought not to have been dismissed quite so readily, or quite so completely. Notwithstanding the lack of a causative connection, it is clear to us that Nuramin is substantially cognitively in deficit, albeit that he has reasonable adaptive skills that enable him to live independently. We consider that some moderation in sentence, particularly as it relates to his level of moral culpability and the need for general and specific deterrence, was appropriate. There is no evidence of any such moderation. Although a causal link between cognitive impairment and offending may justify greater mitigatory weight being allowed for that impairment, the lack of such a link does not eliminate cognitive deficits as relevant to the evaluation of moral culpability and the retributive and denunciatory aspects of the sentence.
Viewed through the prism of the principles of parity, we are of the view that Nuramin has established that his circumstances are sufficiently different from those of Hason to justify a greater disparity in sentence than in fact occurred. Hason was seven years older than Nuramin, apparently of normal intelligence and he continued to engage sexually with an 11 year old after she directly told him her age. He received full benefit for his PSD on remand, whereas Nuramin’s pre-trial immigration detention, as explained, appears to be discounted significantly in its ‘broad and practical’ reflection in his total effective sentence. Further, Nuramin appears to have received no meaningful mitigation of sentence for his intellectual disability.
Proposed grounds 1 and 2 are established and leave will be granted with respect to them. The sentences will be set aside and Nuramin resentenced.

Nuramin — Resentence

In resentencing Nuramin, we do not lose sight of the seriousness of this offending. These were very serious offences involving the planned, cynical violation of a child. Drugs and alcohol were supplied to make 11 year old Daisy even more vulnerable to three predators. As we have said on an earlier occasion,[100] Daisy was treated like a piece of meat, to be consumed and cast aside, after being exposed to pregnancy and sexually transmitted diseases. The damage done to Daisy at this stage is incalculable.
[100]Nuramin v The King [2022] VSCA 215, [88].
Whilst the application for leave to appeal against sentence is granted, and the appeal is allowed, our adjustments to Nuramin’s total effective sentence will be modest, reflecting the seriousness of the offending. That seriousness is reflected in the maximum sentence of 25 years imprisonment for the sexual penetration of a child under 12 offences with a standard sentence of 10 years[101] and the requirement to impose a custodial sentence.[102] The seriousness is similarly reflected in the maximum sentence of 10 years on the sexual assault of a child under 16 offences with a standard sentence of four years,[103] and in the maximum of 15 years for supplying a drug of dependence to a child. We also note that pursuant to s 6F of the Sentencing Act 1991, the applicant stands to be sentenced as a serious sexual offender on charges 5, 6, 7, 8, 9, 13 and 14, which imposes a statutory presumption of cumulation pursuant to s 6E and requires the Court to consider the protection of the community as the principal sentencing purpose pursuant to s 6D. Having said that, the Director does not call for a disproportionate sentence to achieve these ends, and the overarching principle of totality continues to have application.
[101]See s 49A(3) of the Crimes Act 1958 and s 5B of the Sentencing Act 1991.
[102]See s 5(2G) of the Sentencing Act 1991.
[103]See s 49D(2A) of the Crimes Act 1958 and s 5B of the Sentencing Act 1991.
Balancing these factors as best we can we shall make the following orders for resentence.
Charge 1 — 6 months’ imprisonment
Charge 2 — 6 months’ imprisonment
Charge 3 — 7 years’ imprisonment
Charge 4 — 7 years’ imprisonment
Charge 5 — 3 years’ imprisonment
Charge 6 — 7 years’ imprisonment
Charge 7 — 7 years’ imprisonment
Charge 8 — 7 years’ imprisonment
Charge 9 — 7 years’ imprisonment
Charge 13 — 7 years’ imprisonment
Charge 14 — 3 years’ imprisonment

Cumulation

Charge 1 — 1 month
Charge 2 — 1 month
Charge 3 — 6 months
Charge 4 — Base
Charge 5 — 2 months
Charge 6 — 6 months
Charge 7 — 6 months
Charge 8 — 6 months
Charge 9 — 6 months
Charge 13 — 6 months
Charge 14 — 2 months

The total effective sentence is 10 years and 6 months’ imprisonment with a non-parole period of 6 years and 3 months.
This sentence is designed to reflect more fully Nuramin’s time spent in immigration detention and his intellectual deficits, whilst retaining an appropriate relationship to the sentences of his co-offenders. Nuramin’s sentence remains substantial. It is apparent that this is grave offending and despite the mitigatory factors we have identified, a substantial period of imprisonment must be imposed.

Rahamutallah

Rahamutallah advances a single ground of appeal to the effect that the judge overvalued Rahamutallah’s moral culpability in relation to Charge 3 (sexual penetration by Rahamutallah of Daisy — digital). As the argument developed, it became apparent that the applicant asserted that the judge’s error was to characterise Rahamutallah as the ‘organiser’ of the sexual activity that occurred with the 11 year old child. This, it was said, affected the judge’s evaluation of his moral culpability of not just Charge 3 but all the other offences as well.
Whilst Rahamutallah was comparatively limited in his sexual activity with Daisy, he was found guilty of complicity in every other sexual act performed upon her. He was the offender who knew Katie, was in contact with her, and arranged to collect the two children on the night. He did collect them and returned them to care in an intoxicated state. He allowed his long-term share house to be used for the offending, participated in supplying alcohol and cannabis to the children, and then was the first to assault Daisy and the first to penetrate her, albeit digitally. He did this in the presence of his co-offenders and against her resistance. It was open to the judge to be satisfied beyond reasonable doubt that he was the ‘organiser and facilitator of the night’ and that he ‘effectively set the scene for what was to come’ and we agree with that conclusion.[104]
[104]See Reasons, [76].
Her Honour observed that ‘any attempt to distinguish between [co-offenders] based on [their] individual roles in an offence would be extremely artificial, if not impossible’ and ‘would not be reflective of the agreement [they] had all reached’.[105] We agree with this observation. It follows that Rahamutallah has failed to demonstrate that her Honour did overvalue Rahamutallah’s moral culpability for Charge 3, or in all the circumstances, for any other charge. Although parity was not advanced in a proposed ground, we consider that the total effective sentence for Rahamutallah (12 years and 4 months’ imprisonment) bears an appropriate proportionate relationship to Hason’s total effective sentence and to Nuramin’s total effective sentence, as resentenced.
[105]Reasons, [78].
Before leaving this ground, it will be recalled[106] that during the application for leave to appeal a structural defect was identified in the sentences. The impact of mitigating factors by the judge was said to be confined to orders for cumulation.[107]
[106]See para [28] of these reasons.
[107]Reasons, [127].
As we have observed, this is contrary to sentencing principle in that it amounted to two-stage sentencing, and proper regard must be had to the mitigatory factors in the individual sentences as part of the instinctive synthesis. Notwithstanding this, we decline to intervene to correct this error. There is no reasonable prospect that we would reduce the total effective sentence despite the error that we have identified. We consider that this sentencing error makes no practical difference to the total effective sentence imposed and we exercise our discretion under s 280(1)(b) of the Criminal Procedure Act 2009 to decline to correct this technical error.
Rahamutallah’s application for leave to appeal against sentence is refused.
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[2024] VSCA 117

31 May 2024