Tobin (a pseudonym) v The Queen
[2021] VSCA 180
•23 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0077
| WYATT TOBIN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 June 2021 |
| DATE OF JUDGMENT: | 23 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 180 |
| JUDGMENT APPEALED FROM: | DPP v Tobin (a pseudonym) (Unreported, County Court of Victoria, Judge Mullaly, 18 October 2019) |
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CRIMINAL LAW – Appeal – Sentence – Sexual assault of a child under 16, sexual penetration of a child under 12 – Victim three year old step-niece of applicant – Applicant diagnosed with moderate personality disorder – Sentenced to nine years’ imprisonment with non-parole period of five years and six months – Whether judge erred in concluding that principles in Verdins did not apply – Whether sentence manifestly excessive – Leave to appeal refused – R v Verdins (2007) 16 VR 269, O’Neill v The Queen (2015) 47 VR 369, Brown v The Queen [2020] VSCA 212 considered.
CRIMINAL LAW – Appeal – Procedure – Application for extension of time to file application for leave to appeal against sentence – Youthful offender – Delay caused by applicant’s solicitor – Extension of time granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A L Hands | Adrian Paull Criminal Lawyers |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA:
The applicant pleaded guilty, before a judge in the County Court, to one charge of sexual assault of a child under the age of 16 years, and to one charge of sexual penetration of a child under the age of 12 years. After a plea presented on his behalf, he was sentenced, on 18 October 2019, to a total effective sentence of nine years’ imprisonment with a non-parole period of five years and six months.
The applicant’s sentence was constituted as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Sexual assault of a child under 16 (rolled-up charge) (contrary to s 49D of the Crimes Act 1958) | 10 years | 3 years | 1 year |
| 2 | Sexual penetration of a child under 12 (contrary to s 49A of the Crimes Act 1958) | 25 years | 8 years | Base |
Total Effective Sentence: | 9 years’ imprisonment | |||
Non-Parole Period: | 5 years and 6 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 424 days | |||
Section 6AAA Statement: | 12 years’ imprisonment with a non-parole period of 9 years | |||
Other Relevant Order: | Reporting pursuant to s 34 of the Sex Offenders Registration Act 2004 for a period of 15 years | |||
The applicant seeks leave to appeal against sentence on the following grounds:
Ground 1:The learned trial judge misapplied the decision in DPP v O’Neill [2015] VSC 25 to exclude the application of the Verdins principles to the applicant.
Ground 1A:The decision in DPP v O’Neill has been overruled in Daylia Brown v The Queen [2020] VSCA 212 and the law now provides that the Verdins principles apply to persons with personality disorders.
Ground 2:The learned trial judge should have found, but did not, that it was in the ‘interests of justice’ to impose something less than the 60 percent non-parole period given the failure of the learned trial judge to apply the Verdins principles, the applicant’s youth, social isolation, near blindness and plea of guilty.
Ground 3:The head sentence and the total effective sentence were manifestly excessive.
The application for leave to appeal was not filed until 29 April 2020, some five months after the time prescribed by ss 275 and 279 of the Criminal Procedure Act 2009 to commence the application. Accordingly, the applicant has also made application for an extension of time within which to seek leave to appeal against sentence.
Application for extension of time
It is appropriate, first, to deal with the application for an extension of time. The principles, that apply to such an application, were discussed by the High Court in Kentwell v The Queen[2] and by this Court in Madafferi v The Queen.[3] For present purposes, they were sufficiently summarised in the following passage in the judgment of this Court in Barber v The Queen:[4]
The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court. The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. 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. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the appeal notwithstanding such delay.[5]
[2](2014) 252 CLR 601, 613–14 [30]–[32]; [2014] HCA 37 (French CJ, Hayne, Bell and Keane JJ).
[3][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[4][2018] VSCA 232.
[5]Ibid [3] (Kyrou and Kaye JJA) (citations omitted).
The explanation for the delay is contained in the application for extension of time, and is supported by two affidavits sworn by the applicant’s solicitor, Mr Adrian Paull. In response, the respondent has relied on an affidavit sworn by Ms Lucy Radowicz, the solicitor who has responsibility for the conduct of the application on behalf of the Director of Public Prosecutions.
In short, Mr Paull obtained instructions, to appeal the sentence, from the applicant on 30 October 2019, that is, 12 days after sentence. On 31 October, Mr Paull made a request in writing to the judge’s chambers for a hard copy of his Honour’s reasons for sentence. On 7 November, counsel acting for the applicant gave advice in writing that the sentence should be appealed, and counsel on the same date emailed Mr Paull to inquire whether the reasons had been received from the judge. Mr Paull undertook to follow the matter up, but it appears that he overlooked doing so. Ultimately, Mr Paull contacted the judge’s chambers again on 29 January 2020, and in response the judge’s associate emailed the revised and anonymised reasons on the following day, 30 January 2020. On the same day, the reasons were provided to counsel. On 9 February 2020, counsel provided further advice to Mr Paull on the merits of the proposed appeal.
There was then a considerable delay by Mr Paull in initiating the appeal. In his affidavit he has explained the reasons for the delay. He is the principal of a small firm. During February and March 2020, his personal life was affected by a number of turbulent and tragic circumstances. In addition, during that time his office manager was dismissed. Mr Paull also experienced a number of problems when he endeavoured to e-file the applicant’s written case on 22 April 2020. Ultimately, he succeeded in doing so on 29 April.
In response to the application for an extension of time, the respondent has submitted that the applicant has failed to provide an adequate explanation for the delay of three months in obtaining the sentencing reasons from the judge, and for the further delay of almost two months between receipt of those reasons and the filing of the application for an extension of time.
Those points raised on behalf of the respondent may be acknowledged. However, it is plain, from the chronology of events, that a short time after the passing of sentence, the applicant instructed Mr Paull to commence an appeal on his behalf. Further, counsel expeditiously provided advice in relation to the proposed appeal. It may fairly be maintained that Mr Paull was at fault for the delay in following up the initial request of the judge for the provision of his reasons for sentence. While Mr Paull has given reasons for the additional delay between February and March 2020, those reasons do not entirely excuse his failure to ensure that the applicant’s interests were properly attended to. Nevertheless, the fact remains that none of the delay, in the filing of the application for leave to appeal against sentence, could be attributed to the applicant. On the contrary, from an early stage, it was his intention and instructions that application be made on his behalf. Further, in opposing the application, the respondent has not pointed to any actual or presumptive prejudice that has arisen from the delay.
For the reasons that we will provide in our discussion of the substantive application for leave to appeal against sentence, we are of the view that such leave should not be granted. In short, we do not consider that the grounds of appeal, relied on by the applicant, are sufficiently arguable. Ordinarily, that consideration might preclude the grant of an extension of time. However, the applicant is a young man who, through no fault of his own, had a difficult upbringing. He has been sentenced to a substantial period of imprisonment. In circumstances in which the delay was not of his making, it is in the interests of justice that the applicant be granted an extension of time within which to bring the application for leave to appeal against sentence.
We turn, then, to the substantive application for leave to appeal against sentence.
Circumstances of offending
At the time of the offending, the applicant, who was then 20 years of age, was living with his partner, his brother S and his brother’s partner W in their home in Ballarat. The victim of the offence, RA, who was then three years and eleven months old, was the daughter of W. S and W also had two other children, T who was then aged 16 months and an infant who was about seven weeks of age. Some months before the offending, the applicant and his partner had moved from Western Australia to Victoria to live with S and his family, in order to assist them look after their young family.
At about midday on the day of the offending, 20 August 2018, the applicant was left alone babysitting RA and T in the home. The other members of the household had left to attend appointments at Centrelink and Medicare. When they left, T was in bed asleep, and RA was watching television in the lounge room.
At about 1:30 pm, the applicant and RA were in the lounge area. While RA was watching television, the applicant pulled down her pants and underwear. He then lay on the floor, placed RA on his chest with her legs straddled over his shoulders, and rubbed her vagina with his finger. That conduct by the applicant constituted charge 1 (a rolled-up charge), namely, sexual assault of a child under 16 years of age.
The applicant then licked RA’s anus (which was also part of the conduct constituting charge 1), while inserting his finger into her vagina. That latter conduct constituted the offence that was the subject of charge 2 (sexual penetration of a child under 12 years of age). While he was doing so, S and W returned home. They walked into the lounge room and saw the applicant lying on his back on the ground, with RA lying on her back on top of the applicant’s stomach. The applicant was supporting her backside above his head. S noticed that RA’s pants were pulled down to her ankles and that the applicant was licking her anus. S then yelled out ‘What the fuck are you doing?’. W looked over to see the applicant apparently licking RA’s vagina. The applicant then threw RA off his chest. RA pulled up her pants and underwear.
S then told the applicant he had five minutes to collect his belongings and leave the house. The applicant left the house a short time later. In the meantime, W contacted the applicant’s partner and told her what had occurred. W then spoke to another friend about what had occurred, and that friend told her mother.
Subsequently, in the late afternoon, the applicant was assaulted by a group of four people who had learnt about the incident. He was assaulted in the street and directed to get into a vehicle. He was then driven to a remote location, where he was assaulted until he lost consciousness. After he regained consciousness, he sought help. An ambulance attended and drove him to Ballarat Base Hospital, where he remained for two days.
At about 8:00 pm on 20 August, police attended Ballarat Base Hospital and spoke to the applicant about the assault that had been perpetrated on him. In the course of the conversation, the applicant told the police that he had been babysitting RA, and when his brother and W returned, they found him sexually assaulting RA by rubbing her vagina. He then told the police that RA had been a bit ‘touchy’ and had been ‘touching him on the penis on the outside of his clothing a few times in the recent past’. The applicant was arrested but remained in hospital until 22 August.
On 21 August, S spoke to the applicant by telephone. The applicant told S that he had made admissions to police about what he had done. S then contacted the Ballarat Police Station to report the incident. A VARE was conducted with RA on 21 August 2018. She told police that the applicant had ‘done naughty things to me … at my house’.
On 22 August 2018, the applicant was taken to Ballarat Police Station and interviewed. He stated as follows:
·In the weeks leading up to 20 August, RA had been clingy and touchy, putting her hand on his penis.
·One day he let it slip but there was no penetration and he did not hurt her.
·On the day of the incident, he was lying on the lounge room floor and RA was lying on his chest. She put her hand on him and moved it between her legs, meaning that she put his hand on top of or even in her vagina.
·He touched RA’s vagina beneath her clothing, and when S and W walked in, he was touching her on the vagina.
·He should not have done it. He had not done it before; this was the only time he went too far.
·When he was rubbing RA’s vagina, his fingers were moving around the lips of the vagina. He rubbed the lips and her clitoris which he agreed were within the lips of the vagina. He denied touching or licking RA’s anus but admitted that his hand could have gone near her anus.
·He denied performing oral sex on RA.
The applicant was released on bail. A filing hearing was listed on 24 August. A committal mention was held on 15 November 2018, at which the case was listed for a contested committal hearing on 13 March 2019. At the commencement of the committal hearing on that date, the case resolved before any witnesses were called.
The applicant’s previous convictions
The applicant has a significant history of matters that were before the Children’s Court in Western Australia between November 2012 (when he was 14 years of age) and December 2015 (when he was 17 years of age). His previous offending included aggravated robbery, assault occasioning actual bodily harm, assaulting a person performing a public function, and a number of offences of dishonesty. He has no previous history of committing sexual offences.
The applicant’s personal circumstances
The applicant is the youngest of three children of his parents. He was born and raised in Perth. Both of his parents indulged in substance abuse and had contact with the criminal justice system. During his early childhood, he was exposed to domestic violence by his father towards his mother.
At the age of six years, the applicant and his brother S were placed in out of home care because of the inability of their parents to raise their children. Initially, the applicant and his brother lived with an aunt and uncle in Broome for seven months, before being placed in foster care in Perth. The applicant’s father died from cancer when the applicant was ten years of age, and his mother passed away some six months later. During that period, the applicant was apparently diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’).
The applicant attended a number of schools in Western Australia, and completed his education in Year 10. After leaving school, the applicant and his brother moved to Kalgoorlie, where they both met their partners. The applicant completed a Certificate 2 in Automotive Engineering, but he did not obtain any paid employment in Kalgoorlie. Subsequently, the applicant’s brother and his partner relocated to Ballarat, and, as we have mentioned, the applicant and his partner followed them in order to assist his brother look after the children.
After the applicant was remanded in custody, he was detained at Hopkins Correctional Centre, where he was targeted by other prisoners. He has alleged that on one occasion he was sexually assaulted by another prisoner. When the applicant was moved to Port Philip Prison for his plea hearing, he was kept in isolation for his own protection.
Psychological assessment
The applicant was assessed by Dr Dion Gee, a forensic psychologist, in August 2019 for the purposes of the plea. The lengthy and detailed report of Dr Gee was tendered on the plea.
In summary, Dr Gee noted that the applicant’s formative years had been affected by a significant degree of social and emotional disruption and disadvantage, and his transition into early adulthood was lacking adaptive and pro-social experiences. Dr Gee was of the view that the applicant’s history had led to the development of several ‘interlinking psychological mechanisms’ that appeared to underpin his disposition and in part explain his past aberrant behaviour. Specifically, Dr Gee found that the applicant presented with the following features: first, emotional and behavioural misregulation; secondly, cognitive distortions that appear to make him vulnerable to ‘act out’ in an aberrant manner; thirdly, deficits in intimacy and social skills; fourthly, distortions in his underlying ‘sexual scripts’.
Dr Gee considered that the applicant did not present with any acute or chronic mood disorder, and that while he had a previous diagnosis of ADHD, that condition did not appear to be a relevant part of his current presentation. Dr Gee diagnosed that the applicant met the DSM-5 diagnostic criteria for a moderate personality disorder, presenting with mixed anti-social, paranoid and avoidant personality disorder features. He did not meet the diagnostic criteria for a paedophilic disorder or a paraphilic disorder. Dr Gee also considered that the applicant lacked insight into his mental health needs, and he had a reduced understanding of potential future risks. Dr Gee was of the view that the applicant represented a ‘moderate risk’ of re-offending sexually.
In respect of the question whether there was any connection between the applicant’s psychopathology and his offending, Dr Gee said the following:
Regarding the nexus between [the applicant’s] impaired mental functioning and the index offences, whilst it is difficult to assert the presence of a direct causal connection, clinically there would seemingly be a degree of association mediated through his substance use and personality pathology. That is, with the backdrop of interpersonal/social skills deficits, emotional and behavioural misregualtion, and cognitive distortions, [the applicant] may have been in a position where he was more vulnerable than the average person to act in a manner without having given due consideration to the consequences of his actions; although he is generally in a position where he can make reasoned and ordered judgements, maintain control over his emotions and faculties, and appreciate the wrongfulness of his conduct. As such, whilst [the applicant’s] impaired mental functioning may have predisposed him to act in an aberrant manner, there does not appear to be a direct causal nexus between the two; but instead any such clinical association was mediated through the further disinhibiting effects emerging from within his substance use, personality pathology and cognitive distortions.
In respect of the potential effect of a term of imprisonment, Dr Gee considered that, taking into account the applicant’s age and impaired mental functioning, imprisonment would not weigh more heavily on him than on a person in normal mental health.
The plea
On the plea, counsel for the applicant submitted that the offending by the applicant was opportunistic and not planned. While it was accepted that there was a breach of trust involved in the offending, it was submitted that it was not of a ‘high level’ akin to offending by a school teacher. It was submitted that accordingly the judge should regard the applicant’s offending as falling into the ‘medium range.’
In mitigation, counsel relied on the applicant’s plea of guilty, his youth, and the fact that he was immature and vulnerable in the adult prison system, having been targeted by older prisoners of the Hopkins Correctional Centre. Counsel also relied on the report of Dr Gee in support of a submission, based on the principles summarised in R v Verdins,[6] that the applicant’s psychological disorder was a mitigating factor. Counsel further submitted that the applicant’s time in prison would be more onerous because he lacked any family support, having become estranged from his partner and his brother as a result of his offending. Counsel submitted that in all the circumstances the judge should impose a combination sentence limited to the time already spent by the applicant in custody (some 420 days) and a community corrections order. Alternatively, he submitted that the judge should impose a sentence of imprisonment with a longer than normal parole period.
[6](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
Sentencing reasons
In his reasons for sentence,[7] the judge noted that both of the offences, to which the applicant pleaded guilty, came within pt 3 of the Sentencing Amendment (Sentencing Standards) Act 2017, which introduced the ‘Standard Sentencing’ provisions in the Sentencing Act 1991. In determining the seriousness of the offending for the purposes of s 5A(1)(b) of the Sentencing Act, the judge took into account that the applicant’s conduct involved an abuse of his brother’s trust. The offending in charge 1 involved the applicant using RA ‘as a crude base object for [his] perverse behaviours’.[8] The offending that was the subject of charge 2 was, by its very nature, ‘truly abhorrent conduct’ and it carried a ‘small risk of injury and more risk of pain’ to the child.[9] It was a violation of the child and was an act of ‘depravity’.[10] In those circumstances, the judge characterised the applicant’s offending, on both charges, as above the middle of the range.[11] His Honour stated:
This was, on any measure, truly grave criminality. Yours was a very serious example of these dreadful crimes.[12]
[7]DPP v Tobin (a pseudonym) (Unreported, County Court of Victoria, Judge Mullaly, 18 October 2019) (‘Reasons’).
[8]Ibid [26].
[9]Ibid [29].
[10]Ibid [31].
[11]Ibid [33].
[12]Ibid [34].
The judge then gave consideration to the submission made on behalf of the applicant that the principles stated in Verdins should apply to sentencing the applicant. In doing so he referred to the decision of this Court in DPP v O’Neill,[13] that, ordinarily, personality disorders do not qualify for the application of those principles.[14] (We interpolate that that proposition, stated in O’Neill, has subsequently been repudiated by this Court in Brown v The Queen).[15] Accordingly, the judge considered that the applicant’s personality disorder did not enliven the principles stated in Verdins. In any event, the judge noted that Dr Gee had made it clear that the applicant’s personality disorder was not causally connected with the applicant’s offending conduct.[16]
[13](2015) 47 VR 395; [2015] VSCA 325 (‘O’Neill’).
[14]Reasons [35].
[15][2020] VSCA 212 (‘Brown’).
[16]Reasons [35]–[36].
The judge also noted that the applicant’s guilty plea was made at the commencement of the contested committal proceeding on 13 March 2019. Thus, the plea, while not made at the earliest time, was made before any witness was required to be cross-examined.[17] The judge took into account that the applicant was now isolated in Victoria, as he had become estranged from his brother, his partner had left him, and he had no family either in this State or in Western Australia.[18] The judge considered that the applicant’s prospects of rehabilitation were ‘guarded if not worse’, in light of his poor insight into his offending, his lack of understanding of the impact of the offending on RA, and his attempt to minimise his wrongfulness by casting responsibility onto the child.[19] His Honour noted Dr Gee’s view that the applicant would be a moderate risk of re-offending, and that it would be difficult to diminish the risks presented by the applicant in that regard.[20]
[17]Ibid [6].
[18]Ibid [43].
[19]Ibid [47].
[20]Ibid [54]–[55].
The judge took into account the applicant’s youth, but considered that in view of the gravity of the offending, his youth and rehabilitation must yield to the sentencing purposes of general deterrence, denunciation and protection of the community.[21] The judge stated that he gave weight to the applicant’s plea of guilty, in that it constituted an acceptance by the applicant of responsibility for the crimes, and it facilitated the course of justice.[22]
[21]Ibid [57].
[22]Ibid [63].
Finally, the judge discussed the effect of s 11A of the Sentencing Act, which requires that a minimum non-parole period of 60 percent of the head sentence be ordered unless it was in the interests of justice to do otherwise. It is convenient to set out the judge’s consideration of that issue when we turn to ground 2.
Ground 1 and Ground 1A — submissions
In support of ground 1 and ground 1A, counsel for the applicant, in effect, advanced two submissions. First, he submitted that the decision of this Court in Brown has overruled that part of the decision in O’Neill, in which it was held that the principles outlined in Verdins do not apply to offenders with personality disorders. Counsel submitted that the personality disorder of the applicant, that was diagnosed by Dr Gee, constituted an impairment of the applicant’s mental functioning to which the Verdins principles applied.
Secondly, it was submitted, the judge was in error in considering that, in order that the applicant’s personality disorder operated to reduce his moral culpability for the offending, or to moderate the application of the principle of general deterrence, it must be demonstrated that there was a relevant causal nexus between the disorder and the applicant’s offending. Counsel submitted that, properly considered, the decision of the Court in Verdins did not require that there be a realistic causal connection between the disorder and the offending in order that the applicant’s subjective culpability for the offending be moderated. Further, it was submitted, the judge erred in failing to conclude that a term of imprisonment would be more burdensome on the applicant, and that it would exacerbate his personality disorder.
In response, counsel for the respondent submitted that the Court in Verdins made it clear that an offender’s mental impairment or disorder could not operate to reduce the offender’s moral culpability for the offence, unless it was demonstrated that there was a relevant causal connection between the disorder and the offending. It was submitted that the judge was correct to conclude that Dr Gee had made it clear that the applicant’s personality disorder was not causally connected with the offending conduct. Further, it was submitted, Dr Gee’s report made it also clear that a term of imprisonment would not weigh more heavily on the applicant as a result of his personality disorder.
Ground 1 and Ground 1A — analysis and conclusion
The point, that is advanced under grounds 1 and 1A, is that the trial judge erred in concluding that the principles, discussed in Verdins, concerning the effect of an offender’s impaired mental functioning, did not apply in the determination of the sentence to be imposed on the applicant.
Ground 1 of the application for leave to appeal was formulated some months before the judgment of this Court in Brown, and thus focussed on the earlier decision of the Court in O’Neill. For that reason, the grounds were subsequently amended to include ground 1A.
In O’Neill, the offender was diagnosed as having a maladaptive personality adjustment and as suffering ‘pervasive feelings of worthlessness, inadequacy and insecurity’. As such, he met the DSM-V criteria for a diagnosis of dependent personality disorder with prominent features of narcissistic personality disorder’. The Court concluded that the principles stated in Verdins did not apply to such a personality disorder.[23]
[23]O’Neill (2015) 47 VR 395, 413 [71]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA).
In Brown, the applicant was diagnosed to have a severe personality disorder with detachment and a borderline pattern. At the time that she was apprehended, she was unfit for interview and transferred to Orygen Youth Health Psychiatric Unit. While she was detained in that unit, she repeatedly told staff that she did not belong in the world, she wanted to be gaoled, and she wanted to set fire to the building so she could be taken to prison. When she was discharged to supported accommodation, she attended at a previous residence, smashed a window, and started a fire within the residence. On the plea, the court heard detailed evidence from a forensic psychiatrist, Dr Andrew Carroll, concerning the nature of the offender’s condition. Based on that evidence, the Court departed from its earlier decision in O’Neill, holding that the personality disorder, which was diagnosed by Dr Carroll, constituted an impaired mental functioning that attracted the principles stated in Verdins. The Court stated:
[The applicant] was, by reason of her impaired mental functioning, in an entirely different position. Her impaired judgment was a function not of youth or immaturity, but of her longstanding, pervasive, personality disorder. The expert evidence established that she lacked the internal capacity to regulate her own conduct and was unable to form protective relationships.
These factors resulted in an unstable sense of self, impulsivity, recurrent suicidal behaviours and self-mutilation, and difficulty in controlling anger. On any reasonable assessment, the condition fundamentally impaired her ability to act rationally, regulate her conduct and fully understand the consequences. Given the causal link between her condition and these offences, her moral culpability was significantly reduced. Given the informing principle of the common law ‘that there should be a close correlation between moral culpability and legal responsibility’, her reduced moral culpability had to find appropriate reflection in the sentence.[24]
[24]Brown [2020] VSCA 212, [81]–[82] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA) (citation omitted).
In the present case, it is not necessary to decide whether the applicant’s personality disorder, which was diagnosed by Dr Gee, constituted an impairment of his mental functioning in accordance with the principles discussed in Brown. Assuming, without deciding, that his condition did constitute such an impairment, it was necessary for the applicant to establish that that impairment played a material causative role in his commission of the offences to which he pleaded guilty, at least in order that it mitigate his subjective culpability for the offending.
In Verdins, the Court emphasised the necessity for there to be a material causal nexus between the impairment and the offending, in order that the impairment reduce the offender’s moral culpability for the offending. In doing so, it provided a non-exhaustive list of the manner in which such an impairment may affect an offender’s moral culpability. The Court said:
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of —
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
As we have said, this is not to be taken as an exhaustive list.[25]
[25]Verdins (2007) 16 VR 269, 275 [26]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA) (citations omitted). See also Muldrock v The Queen (2011) 244 CLR 120, 139 [54]–[55]; [2011] HCA 39 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); O’Neill (2015) 47 VR 395, 414–15 [74]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA); Brown [2020] VSCA 212, [82] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
In the passage of his report, which we have quoted earlier,[26] Dr Gee expressed the view that the applicant’s impaired mental functioning might have predisposed him to act in an aberrant manner, but that there was no ‘direct causal nexus’ between his personality disorder and the commission by him of the offences to which he pleaded guilty. Further, there was nothing in the section of Dr Gee’s report, that summarised the tests he administered to the applicant, that revealed that, in some way, his personality disorder had mediated or directed the sexual offences committed by the applicant against his three year old step-niece. In those circumstances, the judge had a substantial evidentiary basis upon which to conclude, as he did, that the applicant’s personality disorder was not causally connected to his conduct.[27] Accordingly, the judge was correct to conclude that the applicant’s subjective culpability for his offending was not moderated or mitigated by reason of that disorder.
[26]Supra 31
[27]Reasons [36].
There was also no basis upon which it would have been appropriate to moderate the application of the principle of general deterrence in respect of the applicant’s offending. The circumstances of the applicant were far removed from the type of case in which it is necessary to moderate or eliminate the application of general deterrence by reason of an offender’s mental impairment.[28] On the contrary, as we will discuss, in light of the egregious nature of the offences committed by the applicant, and the particular vulnerability of his victim, it was important that full weight be given to general deterrence in the exercise of the sentencing discretion.
[28]R v Mooney (Unreported, Court of Criminal Appeal of Victoria, Young CJ, Lush and Jenkinson JJ, 21 July 1978); R v Anderson [1981] VR 155, 159–61 (Young CJ and Jenkinson J), 164 (Murphy J); Verdins (2007) 16 VR 269, 273–4 [16]–[22]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA); O’Neill (2015) 47 VR 395, 408–9 [54]; [2015] VSCA 325 (Warren CJ, Redlich and Kaye JJA).
Finally, it is clear that the evidence of Dr Gee precluded the application of the fifth and sixth principles identified in Verdins, which permit an amelioration of sentence in circumstances in which a term of imprisonment might weigh more heavily on the offender by reason of his or her impairment, or where there is a serious risk that imprisonment might have a significant adverse effect on the offender’s mental health. Dr Gee in his report stated that, taking into account the applicant’s age and impaired mental functioning, a term of imprisonment would not weigh more heavily on him than on a person in normal mental health. Based on that evidence, the judge was correct to conclude that there was nothing in the material before him that demonstrated that a term of imprisonment would be more onerous on the applicant than on any other young person of his age.[29]
[29]Reasons [75].
For those reasons, the applicant has failed to demonstrate that the judge erred in concluding that the principles outlined in Verdins did not apply to the determination of the applicant’s sentence. It follows that ground 1 and ground 1A of the application for leave to appeal against sentence must fail.
Ground 2 — introduction
Both of the offences, for which the applicant was sentenced, are standard sentencing offences. In respect of each of them, ss 11A(4)(b) and (c) of the Sentencing Act provided as follows:
(4)Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least —
…
(b)70% percent of the relevant term if that term is a term of 20 years or more; or
(c)60% of the relevant term if that term is a term of less than 20 years.
The phrase ‘relevant term’, in that subsection, refers to the total effective sentence that is imposed on the offender.[30]
[30]Sentencing Act 1991 ss 11A(1)(b) and 11A(5)(b).
In sentencing the applicant, the sentencing judge was initially mistaken as to the prescribed minimum percentage non-parole period applicable to the applicant. In his reasons his Honour initially stated:
In this case, your youth is a good reason to keep the non-parole period as low as justice will allow and to have a potential for a lengthy supervision in the community on release. You are especially isolated as I have described and you will need help in re-establishing. In my view, there are good reasons which amount to it being in the interests of justice [for] a non-parole period to fall below the statutory requirement, but just below it.[31]
[31]Reasons [62].
The judge then imposed a total effective sentence of nine years’ imprisonment with a non-parole period of six years. In respect of that non-parole period, his Honour stated:
This is 66 per cent as it is in the interests of justice that it be below, but just below, [70] percent.[32]
[32]Ibid [64].
We interpolate that throughout the sentencing reasons, the judge referred to 60 percent as being the relevant minimum non-parole period. However, his reference to the non-parole period of 66 percent being ‘just below’ the prescribed percentage, and the subsequent discussion when the matter was recalled to correct the error, makes it clear that, initially, the sentencing judge mistakenly understood that the relevant prescribed minimum non-parole period was 70 percent pursuant to s 11A(4)(c) of the Sentencing Act.
As a result of that error, the matter was recalled, in order that the non-parole period be corrected. It was at that point that the judge stated that the relevant minimum non-parole period was 60 percent. He then said the following:
I consider for all the reasons that I sent out that a sentence at or about 60 per cent is an appropriate sentence. It was higher when I had a figure of [70] per cent as the ratio. It was 66 per cent. I reduced that in an appropriate way. These things are not mathematical to the day or the hour. These are instinctive synthesis of what justice requires as the minimum you serve in prison. The term that will be imposed is less than announced.[33]
[33]Ibid [112].
The judge then imposed a non-parole period of five years and six months, which amounted to 61 percent of the total effective sentence.
Pausing there, it was not in dispute on this application that, in sentencing the applicant, the judge considered that the applicant’s youth and isolation meant that it was in the interests of justice that a non-parole period of less than 70 percent be fixed. It was for that reason that he initially considered that a non-parole period of 66 percent of the total effective sentence was appropriate. However, when he was made aware of the error, and correctly understood that the prescribed minimum non-parole period was 60 percent, the judge no longer considered that it was in the interests of justice to impose a non-parole period that was less than the prescribed minimum.
Ground 2 — submissions
In support of ground 2, counsel for the applicant submitted that, by not concluding that it was ‘in the interests of justice’ to impose less than the 60 percent non-parole period prescribed by the Standard Sentence Scheme, the judge failed to give any or any adequate weight to a number of factors. They included the following:
·The applicant’s youth.
·The fact that the applicant’s formative years had been marked by a significant degree of disadvantage and dysfunction in the family setting.
·The applicant’s borderline personality disorder.
·The applicant’s plea of guilty.
·The fact that the applicant (so it was submitted) had missed the opportunity to be detained in a youth justice centre, rather than in an adult prison, ‘because of the vagaries of the management of Circuit Listings’.
·The fact that, while Dr Gee assessed the applicant’s risk of re-offending as moderate, the judge characterised the risk as being at the high end of the moderate range.
·The fact that the applicant had been assaulted in prison, as a consequence of which he was moved to Port Philip Prison, where, as it happened, his assailant had also been transferred, so that he would find prison more onerous than other prisoners.
·The applicant’s poor eyesight.
·The fact that the applicant is without any family or other support in Victoria.
In response, counsel for the respondent noted that it was due to the applicant’s youth and isolation in prison that the judge found it in the interests of justice to impose a non-parole period less than that specified by s 11A(4)(c) of the Sentencing Act. Counsel further noted that in the course of the plea it was not submitted on behalf of the applicant that his personal circumstances were such that the principles stated by the High Court in Bugmy v The Queen[34] were engaged. Nevertheless, the judge had regard to the applicant’s personal history and his difficult upbringing. Counsel further noted that the judge did take into account the applicant’s plea of guilty. Counsel further submitted that the applicant has not demonstrated how the ‘vagaries’ of the management of Circuit Listings were relevant. In particular the applicant turned 21 years of age on 21 January 2019 before he entered his guilty plea at the committal hearing on 13 March 2019.
[34](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
Counsel for the respondent submitted that the finding by the judge, that the applicant’s risk of re-offending was towards the high end of moderate risk, was well open, in view of the matters discussed by Dr Gee in his report, and in view of the fact that the applicant has little by way of support in the community, and the fact that he had attempted to place blame on the victim for his offending.
Finally, counsel for the respondent noted that the materials, relied on by the applicant, cast some doubt on the applicant’s account of the incident in which he claimed to have been assaulted by another prisoner. Further, the incident pre-dated the applicant’s assessment by Dr Gee, who considered that imprisonment would not weigh more heavily on the applicant. Counsel for the respondent further noted that the applicant has not provided any medical documentation in support of his claim to have poor eyesight. Finally, for the reasons discussed under ground 1, counsel submitted that the Verdins principles did not apply to the applicant, so that his personality disorder was not relevant to the determination whether it was in the interests of justice to impose a non-parole period of less than 60 percent.
Ground 2 — analysis and conclusion
In order to succeed under ground 2, the applicant must demonstrate that it was not open to the judge to do otherwise than conclude that it was in the interests of justice to impose a non-parole period that was less than 60 percent of the head sentence.
In his reasons for sentence, the judge discussed the Standard Sentencing regime, which had been recently introduced into the Sentencing Act. In doing so, his Honour noted the effect of s 11A(4)(c).[35] It may be observed that his Honour expressed an understanding of the standard sentence provisions, that was consistent with the principles subsequently stated by this Court, in respect of those provisions, in Brown v The Queen.[36] It was in that context that the judge, in accordance with the requirements of the regime, determined the objective seriousness of the offence. In doing so, his Honour concluded that the offending was ‘above the middle of the range’.[37]
[35]Reasons [9]–[20].
[36](2019) 59 VR 462; [2019] VSCA 286.
[37]Reasons [33].
That evaluation of the objective gravity of the offending was unimpeachable. The conduct of the applicant, in committing the offences, was indisputably abhorrent. It is difficult to overstate the level of depravity involved in committing such acts on any child, let alone one who was just three years of age. As the judge correctly stated, the applicant used the child ‘as a crude base object for [his] perverse behaviours’. The fact that he did so in abuse of the trust reposed in him by his brother and his brother’s partner aggravated the objective gravity of the offending.
Further, as we have discussed in considering ground 1, the judge was correct to conclude that the opinions expressed by Dr Gee did not operate to reduce the level of the applicant’s moral culpability, in view of the conclusion that the applicant’s personality disorder did not play a relevant causative role in the applicant’s commission of the offences.[38] The judge did note the applicant’s disadvantaged and difficult background, but, as counsel for the respondent has pointed out, it was not contended, on the plea, that the applicant’s background circumstances and upbringing engaged the principles stated in Bugmy, so as to mitigate his subjective culpability for the offending. Neither the report of Dr Gee, nor any other material put before the judge, demonstrated how the applicant’s disadvantaged and dysfunctional childhood could have affected his personality in such a way as to predispose him to act in the perverted manner in which he committed the offences in the present case.
[38]Ibid [35]–[36].
In those circumstances, in considering whether it was in the interests of justice that a non-parole period of less than 60 percent of the head sentence be fixed, the starting point, for the judge, was that the objective gravity of the applicant’s offending, and his subjective culpability for it, were both particularly high.
None of the particular factors relied on by counsel for the applicant are such, either alone, or in combination, to demonstrate that the judge erred in concluding that he was not satisfied that it was in the interests of justice that he should fix a non-parole period that was less than the prescribed percentage of the head sentence.
Contrary to the submissions made on behalf of the applicant, the judge did take into account the applicant’s youth, the fact that he was isolated in prison, and his plea of guilty. The judge was correct to conclude that the principles of Verdins did not apply to the sentencing of the applicant. Further, for the reasons we have discussed, it was not demonstrated that the principles stated by the High Court in Bugmy were applicable in the case of the applicant.
It has not been demonstrated on behalf of the applicant why it is submitted that the applicant missed the opportunity to be detained in a youth justice centre because of the vagaries of the Court Listing process. The applicant was arrested on 20 August 2018. He turned 21 years of age some five months later, on 21 January 2019. It was not until the committal proceeding, in March 2019, that he chose to plead guilty. Nothing has been put forward which demonstrates how the applicant’s case could have been heard and disposed of before he turned 21 years of age, so as to make him suitable for an order for detention in a youth justice centre. Indeed, it has not been demonstrated that, if (hypothetically) the plea had been heard before January 2019, the applicant would have been demonstrated to be suitable for such an order.
In his submissions under ground 2, counsel has taken issue with the assessment by the judge that the risk of the applicant re-offending was ‘in the middle range but tending towards the upper portion of that range’.[39] In our view, the judge was correct to reach that conclusion. While Dr Gee, in his report, concluded that the applicant presented a ‘moderate’ risk of future sexual violence in the community, other aspects of his report provided a gloss on that conclusion. In particular, under the heading ‘Personality/Psychopathology’, Dr Gee expressed the following view:
… his character pathology was suggestive of an Antisocial Personality with paranoid, avoidant, and dependant features; habitual patterns underpinning his maladaptive ways of thinking, feeling, behaving and relating that interferes with his ability to function productively.
[39]Ibid [56].
In the section headed ‘Psychosexual Fantasy/Offence Cognitions’ Dr Gee stated:
Overall, and accepting [the applicant’s] response profile on psychometric assessment, he was seen to acknowledge/advance some degree of distorted/problematic cognition/sexual imagery that is associated with and/or justifying of aberrant sexual behaviour involving children. This finding mirrored his presentation during interview, and was commensurate with a history of aberrant behaviour in a man whom is yet to participate in offence-focused intervention to address those causal mechanisms underpinning his aberrant conduct.
Further, Dr Gee’s testing on the Level of Service/Risk, Need, Responsivity (LS/RNR) established that the applicant was in a ‘very high risk/need’ category with respect to both his re-offending and his need for therapeutic intervention. The applicant’s Static-99R Assessment placed him in the average risk level for being charged or convicted of another sexual offence for the ensuing two year period in the community.
In sentencing the applicant, the judge referred to Dr Gee’s report and to the sections of it that were relevant to an assessment of the future risk of the applicant re-offending. Taken together, Dr Gee’s report, alone, supported the judge’s assessment of the risk of the applicant re-offending. In addition, as the judge noted, the applicant’s attempts to minimise the wrongfulness of his offending, and to cast responsibility for it onto the three year old child, demonstrated his lack of insight into his offending and his lack of understanding of the impact that it had on the child.[40] In addition, as the judge noted, the applicant, upon release, would not have the support of family or friends in the community. In those circumstances, the judge was well justified in concluding that the risk of the applicant re-offending was in the moderate range but ‘tending towards the upper portion of that range’.[41]
[40]Ibid [47].
[41]Ibid [56].
Further, we do not consider that the applicant has demonstrated that, in some way, the judge failed to give adequate weight to the applicant’s claim that he had been assaulted in jail. In the course of the plea, counsel for the applicant accepted that the prisoner, who it is alleged assaulted the applicant, had denied the allegation, and that no charges had been laid against that prisoner because the prosecution had formed the view that the prospects of conviction were so slim that it was inappropriate to proceed with the matter. In any event, the incident, whether viewed in isolation or in combination with the other matters relied upon, adds little weight to the submission made on behalf of the applicant that the judge erred in not imposing a lower non-parole period than that which his Honour fixed in sentencing the applicant.
Finally, under ground 2, it was submitted on behalf of the applicant that the judge failed to take into account the applicant’s ‘poor eyesight’. The only matter put before the judge, in that regard, was contained in the applicant’s written submissions, which stated that he had ‘poor eyesight’ and that he required spectacles both for reading and for general use. That point was not elaborated on the plea, and no medical evidence was put before the judge. In those circumstances, it could not be validly maintained that the judge failed to take that circumstance into account or to give it adequate weight.
In summary, then, the judge correctly concluded that, objectively assessed, the objective seriousness of the applicant’s offending, and his subjective culpability for it, were both particularly high. In essence, the offences, for which the applicant stood for sentence, involved an appalling degree of depravity and perversion. In determining the non-parole period, and in particular whether it was in the interests of justice that that period be lower than the prescribed limit set by s 11A(4)(c) of the Sentencing Act, the judge did take into account the applicant’s circumstances, including his youth, his isolation in gaol and his guilty plea. They were relevant mitigating factors in making that assessment. However, in light of the degree of seriousness of the offending, and the applicant’s lack of adequate insight, in our view, the judge was well justified in concluding that it was not in the interests of justice to fix a minimum non-parole period that was less than 60 percent of the head sentence. Indeed, any lesser non-parole period would have failed to give adequate weight to the important sentencing purposes of general deterrence, denunciation and specific deterrence.
It follows that ground 2 of the application for leave to appeal must fail.
Ground 3 — submissions
In support of ground 3, counsel for the applicant relied on precisely the same mitigating factors upon which he relied in support of ground 2, and which we have summarised earlier. Based on those factors, it was submitted that each of the head sentences, and the total effective sentence, imposed on the applicant, were manifestly excessive.
In response, counsel for the respondent noted that the offences for which the applicant was sentenced were standard sentence offences. The prescribed standard sentence for charge 1 is four years’ imprisonment, and the standard sentence prescribed for the offences the subject of charge 2 is ten years’ imprisonment.
Counsel for the respondent contended that in light of the circumstances of the offending, the judge was correct to conclude that that offending, viewed objectively, was above the middle of the range. Counsel further noted that there were a number of factors which militated against the imposition of a lenient sentence. They included the applicant’s lack of insight into his offending, his ‘guarded’ prospects of rehabilitation, his criminal history, and his responses during psychological assessment regarding sexual conduct and children. Counsel contended that in light of the sentencing purposes of general deterrence, denunciation and protection of the community, the sentences imposed on the applicant were well within the range of sentencing options available to the judge.
Ground 3 — analysis and conclusion
In order to succeed, on the ground that the sentences imposed on the applicant were manifestly excessive, it must be established that the sentences were wholly outside the range of sentencing options available to the judge. That is, it must be demonstrated that the sentences were not reasonably open to the sentencing judge, if proper weight had been given to all the relevant circumstances of the offending and of the offender.[42]
[42]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
In considering that question, the starting point is that each of the two offences, to which the applicant pleaded guilty, were, by their nature, particularly serious. The maximum prescribed sentence for the offences the subject of charge 1 was ten years’ imprisonment, and the standard sentence for that offence was four years’ imprisonment. The maximum prescribed sentence, for the offence that was the subject of charge 2, was 25 years’ imprisonment, and the standard sentence fixed for that offence was ten years’ imprisonment.
Further, as we have discussed in considering ground 2, there were particularly serious features attaching to each of the two offences, and in particular to the offence that was the subject of charge 2. As we have concluded, the judge was well justified in characterising the offending as involving ‘truly grave criminality’. Further, for the reasons discussed, the applicant’s subjective culpability for the offending was most high. The abhorrent, perverted and disgusting acts that he committed on his three year old step-niece were thoroughly depraved, and in committing them, the applicant plumbed the depths of moral degradation.
There were relevant mitigating factors, acknowledged by the judge, on which the applicant was entitled to rely. His plea of guilty was of particular importance, involving an acceptance by him of responsibility for his offending. It facilitated the course of justice. The applicant’s youth was also a relevant mitigating circumstance, although, as the authorities have recognised, in a case such as this, it must give way, to some extent, to the sentencing requirements of general and specific deterrence, denunciation and protection of the community.[43] In addition, the applicant lacks any family or other support in Victoria, and in that way will be somewhat isolated during his term of imprisonment.
[43]DPP v Lawrence (2004) 10 VR 125, 132 [22]; [2004] VSCA 154 (Batt JA); Azzopardi v The Queen (2011) 35 VR 43, 55–6 [38]–[39]; [2011] VSCA 372 (Redlich JA).
Nevertheless, giving full weight to each of those mitigating factors, we do not consider that it could be maintained that the sentences imposed on the applicant for each of the two offences, and the total effective sentence, were manifestly excessive, in view of the grave nature of the offending and the high level of the applicant’s culpability for it. In a case such as this, it was important that the sentences be such as to serve as a general deterrent to other persons who might be minded to commit sexual offences against children. It is important that the courts, in that way, play their part in protecting the vulnerable children in our society. Further, it was of importance that the sentences imposed on the applicant be sufficiently severe to express the revulsion and condemnation by the community, and of the Court, of the abhorrent nature of the offending indulged in by the applicant. Finally, it was necessary that the sentences be sufficiently severe to specifically deter the applicant from any further such reoffending.
For those reasons, we are not persuaded that the sentences imposed on the applicant were manifestly excessive. On the contrary, we consider that they were appropriately within the range of sentences available to the primary judge.
It follows that ground 3 of the application for leave to appeal against sentence must fail.
Summary of conclusions
For the foregoing reasons, the applicant has failed to make out any of the grounds contained in his application for leave to appeal against sentence. The applicant is granted an extension of time within which to bring the application for leave to appeal against sentence, but that application for leave must be refused.
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