Trowsdale v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0039

RYAN TROWSDALE	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF JUDGMENT:	22 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 168
JUDGMENT APPEALED FROM:	DPP v Trowsdale [2022] VCC 1496 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Drug, firearm and family violence offending – Whether judge failed to give any weight to delay – Whether the judge failed to give any weight to the applicant’s impaired intellectual functioning – Application for leave to appeal refused.

DPP v Merryfull and Bloomfield [2023] VSCA 244; Stafford v The King [2022] VSCA 229; R v Verdins (2007) 16 VR 240; Brown v The Queen (2020) 62 VR 491; Muldrock v The Queen (2011) 244 CLR 120 referred to.

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Counsel
Applicant:		Mr C Wareham
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and overview

On 10 August 2022 the applicant pleaded guilty to numerous of drug, firearm, family violence and bail offences. On 7 September 2022 he was sentenced as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment K12502007.1
1	Trafficking in a Drug of Dependence – Commercial Quantity	25 years’ imprisonment	6 years’ imprisonment	Base
2	Possession of a Tablet Press	5 years’ imprisonment and / or 600 penalty units	1 year’s imprisonment	Nil
3	Prohibited Person Possess a Firearm	10 years’ imprisonment	1 year and 6 months’ imprisonment	6 months
4	Possession of a Drug of Dependence	1 year’s imprisonment and / or 30 penalty units	1 month’s imprisonment	Nil
5	Failure to Provide Information or Assistance for Data Under Warrant	5 years’ imprisonment	6 months’ imprisonment	Nil
Related Summary Offence
7	Possess Cartridge/Ammunition without Licence or Permit	40 penalty units	$500 fine	N/A
Total Effective Sentence on Indictment K12502007.1: 6 years and 6 months’ imprisonment
Indictment N10800402
1	Persistent Contravention of a Family Violence Intervention Order	5 years’ imprisonment	6 months’ imprisonment	Nil
2	Persistent Contravention of a Family Violence Intervention Order	5 years’ imprisonment	9 months’ imprisonment	Nil
3	Persistent Contravention of a Family Violence Intervention Order	5 years’ imprisonment	9 months’ imprisonment	9 months
4	Destroying property	10 years’ imprisonment	1 month’s imprisonment	Nil
Related Summary Offences
5	Commit Indictable Offence Whilst on Bail	3 months’ imprisonment or 30 penalty units	1 month’s imprisonment	Nil
11	Unlawful Assault	3 months’ imprisonment or 15 penalty units	3 months’ imprisonment	Nil
Total Effective Sentence on Indictment N10800402: 9 months’ imprisonment (of which 9 months is cumulative on the sentence imposed on Indictment K12502007.1)
Global Total Effective Sentence:		7 years and 3 months’ imprisonment
Non-Parole Period:		4 years and 4 months
Pre-sentence Detention Declared:		532 days
Section 6AAA Statement:		10 years’ imprisonment with a non-parole period of 6 years
Other Relevant Orders: Forfeiture and Disposal Orders.

The applicant now seeks leave for an extension of time in which to appeal against sentence. The proposed grounds of appeal are:
1.That the sentencing judge erred in failing to give any weight to the delay in the resolution of the applicant’s case.
2. That the sentencing judge erred in failing to give any weight to the applicant’s impaired intellectual functioning.

Extension of time

The application for leave to appeal against sentence was filed on 8 March 2024, some 16 months out of time. The principles governing the discretion to grant an extension of time were summarised in Madafferi v The Queen.[1] The Court must examine the reasons for the delay and the merits of the proposed appeal to determine whether, in the circumstances of the particular case, the interests of justice favour the grant of leave.
[1][2017] VSCA 302.
In this case, the application for an extension of time is supported by an affidavit sworn by the applicant’s current solicitor, Sarah Tricarico. Ms Tricarico deposes to receiving instructions from the applicant on 17 August 2023 and the steps she (or her office) took thereafter to obtain relevant materials, provide advice and file the application for leave to appeal. It is plain from that evidence that the delay post 17 August 2023 is explicable and not attributable to the applicant. There is, however, no evidence to explain the delay by the applicant between October 2022 and August 2023.
That matter, coupled with the lack of merit in the proposed grounds (for the reasons below) compels the conclusion that the application for an extension of time in which to appeal against sentence should be refused.

Summary of offending

The offending relevant to Indictment K12502007.1 was as follows.
The applicant’s activities between 11 April 2019 and 16 September 2019 were monitored by police through various electronic surveillance devices. In that period those devices recorded the applicant trafficking cocaine on 19 occasions to various customers (charge 1). The quantity of cocaine trafficked could not be precisely quantified, but it was alleged (and accepted) to be at the upper end of the range for a commercial quantity. The individual transactions varied from 0.4 grams to five ounces and 10 grams.
On 24 September 2019 the applicant was arrested outside his apartment. He had in his possession two mobile phones and $4,565 in cash. When required to provide passcodes to the mobile phones pursuant to police warrants, the applicant refused (charge 5).
During a search of the applicant’s apartment police seized, among other things, a plastic container containing 304 blue tablets. Upon analysis those tablets were found to contain 40 grams of methandienone (charge 4). The possession of those tablets was unrelated to the applicant’s trafficking activities.
During a search of the applicant’s car, parked in the carpark of the applicant’s apartment complex, police recovered a grey box containing .22 calibre ammunition and a black purse containing assorted firearm ammunition (related summary charge 7) as well as two bags of cocaine. One bag contained 234.7 grams of cocaine with a purity of between 8 and 9 percent. The other contained 234.2 grams of cocaine with a purity of 3.5 percent (charge 1).
The applicant was in possession of the keys to a nearby vehicle in the carpark. In it police recovered a Baretta handgun. It was capable of discharge and had its serial number partially erased. The applicant was not the holder of a firearms licence and was a ‘prohibited person’ as defined under the Firearms Act 1996 (charge 3).
Also on 24 September 2019 police searched a residential address in Somerville locating an industrial sized tablet press concealed within a water tank (charge 2).
The applicant was remanded on 24 September 2019. He was admitted to bail on 21 October 2020, the conditions of which required him to reside at The Cottage, a residential drug treatment centre.
The offending relevant to Indictment N10800402 occurred in the first months of 2022.
On 22 November 2021 the Magistrates’ Court of Victoria issued a family violence protection order (‘order’) to which Tiara-Lily Sheridan was the protected person and the applicant was the respondent. Ms Sheridan and the applicant had previously been in a romantic relationship. The conditions of the order precluded the applicant from committing family violence against Ms Sheridan and also from contacting her.
Between 3 January 2022 and 27 January 2022 the applicant contravened the order by contacting Ms Sheridan on 22 occasions through phone calls and Snapchat messages (charge 1).
Between 11 February 2022 and 4 March 2022 the applicant contravened the order by contacting Ms Sheridan on 29 occasions through phone calls, Snapchat and WhatsApp messages (charge 2).
Between 10 and 23 April 2022 the applicant contravened the order by contacting Ms Sheridan on 51 occasions through phone calls, Snapchat, text messages and emails (charge 3).
Most of the phone calls made by the applicant to Ms Sheridan went unanswered. The messages included derogatory and threatening messages. Representative samples include:
·Juat (sic) remember who’s got control of ur rat car slut
Was ur mum a whore aswell she must have been
·I’m gonna pay some junkie to throw acid in your face dog
You wait slut
U won’t ever look the same
At about 5.45 pm on 22 April 2022 the applicant parked his car outside Ms Sheridan’s address. He sent her a message in the following terms:
·Do you think I’ll I’ll just ignore him and everything will be alright and you’ll try contact me tomorrow or something like that or the next day you fucking dumb dog it doesn’t work like that you little slut I’ll punch your fucking rat head in
The applicant left the address in his car and, upon finding Ms Sheridan in Docklands, parked his car in the middle of the intersection. Upon exiting the car he left the ignition on and the driver’s door open. The applicant had a verbal argument with Ms Sheridan before grabbing her by the T shirt, pulling her towards the car and yelling at her to get in the car (related summary offence 11). Ms Sheridan managed to break free. During the incident the applicant smashed her sunglasses (charge 4).
The applicant was arrested the following day, 23 April 2022.

Sentencing Reasons

In his Reasons for Sentence[2] the judge first identified the charges and their maximum penalties[3] before summarising the offending.[4] The judge noted the absence of a formal victim impact statement from Ms Sheridan.[5]
[2]DPP v Trowsdale [2022] VCC 1496 (‘Reasons’).
[3]Reasons, [2]-[3].
[4]Reasons, [4]-[20].
[5]Reasons, [22].
Next the judge summarised the applicant’s criminal history, stating that he had been convicted or found guilty of 27 charges in nine court hearings. The applicant had been sentenced to imprisonment four times. One such sentence was a suspended term of imprisonment. The longest sentence was two years and nine months for recklessly causing serious injury and making a threat to kill. The judge observed that the applicant’s criminal history did not reveal offences necessarily relating to addiction. On 22 May 2013 and 14 August 2014 he was sentenced to imprisonment for several charges including trafficking methylamphetamine.[6]
[6]Reasons, [23]-[25].
Turning to the applicant’s personal circumstances, the judge said that the applicant was then 37 years of age. He was born in Frankston. His parents separated shortly after his birth and he has never had contact with his father. The applicant praises the manner in which his mother raised him. The applicant left school in Year 10 and commenced but did not finish a pre-apprenticeship course in plumbing. Thereafter he worked in the building industry. A trucking business he established ended with his imprisonment.[7]
[7]Reasons, [26]-[28].
The applicant has a child, then aged three, with an ex-partner. The applicant was in regular contact with the child.[8]
[8]Reasons, [29].
The applicant was a social drinker of alcohol and used cannabis in his mid-20s. From the age of 18 he used amphetamine, from the age of 20 cocaine and from about 27 years methylamphetamine, up to one gram per day. The applicant had also used GHB and various forms of anabolic steroids.[9] The judge referred to the reports, tendered on behalf of the applicant, from Dr Danny Sullivan, a consultant forensic psychiatrist, and Mr Bernard Healy, a clinical psychologist with respect to the applicant’s drug addiction. Mr Healy had detailed the applicant’s four month residence, from October 2020, at The Cottage, his transition to a place arranged by the Cottage, his move to his mother’s home and then to his own apartment.[10] Dr Sullivan recorded the applicant’s statement to him that in the weeks prior to his arrest the applicant had used methylamphetamine, cocaine, GHB, anabolic steroids and alcohol.[11] The judge said that it was ‘fair to say that at the time of your offending you were affected by drugs’.[12]
[9]Reasons, [30]-[33].
[10]Reasons, [34].
[11]Reasons, [35].
[12]Ibid.
The judge noted that the applicant was supported by his mother in court and that his mother also facilitated contact between the applicant and his child.[13]
[13]Reasons, [36].
The judge then examined the material tendered on behalf of the applicant.
First was the report of Maria Hutchinson, an addiction treatment counsellor and (at the time of the applicant’s residence) the chief executive officer of The Cottage. Ms Hutchinson interacted daily with the applicant at The Cottage and later remained in contact with him until his re-arrest. Ms Hutchinson viewed the applicant’s child as the applicant’s key motivator to address and change his behaviours. She remained supportive of the applicant and expressed a willingness to continue to work with him in light of the ‘significant growth’ he had made in his recovery and his willingness to voluntarily seek counselling.[14]
[14]Reasons, [37]-[40].
The judge referred to the 2014 report of Dr Lindsay Vowels, a neuropsychologist, tendered by the applicant. Dr Vowels concluded that the applicant’s intellectual abilities were in the low average to borderline range and that he suffered from several significant cognitive disabilities, including mild intellectual disability and mild disorder to the applicant’s language, reading and communication. Dr Vowels considered it highly possible that the applicant had an acquired brain injury and diagnosed him with dysexecutive syndrome. That impaired a number of the applicant’s attributes including his ability to persevere with a task, impaired his ability to learn new things and reduced his ability to reason.[15]
[15]Reasons, [41]-[44].
In a 2020 report Dr Sullivan diagnosed the applicant as suffering from a significant substance use disorder but found that he did not satisfy the criteria for dependence. Dr Sullivan then thought that the applicant’s intellectual functioning was in the low average to borderline range. The applicant was diagnosed with a recurrent depressive disorder of mild to moderate severity. In a subsequent July 2022 report, Dr Sullivan said that, after re-interview, he thought the applicant was of average intelligence. He maintained his other previous diagnoses. The judge noted that Dr Sullivan did not link the applicant’s mental disorders with his offending, but stated his opinion that imprisonment would be more burdensome to the applicant because he is separated from other prisoners and that worsened his anxiety.[16]
[16]Reasons, [46]-[55].
Mr Healey assessed the applicant as mildly intellectually disabled and considered that he suffered from a post-traumatic stress disorder caused by the 2019 death of a friend in what the applicant believed was an attempt to kidnap him. Mr Healey also said that the applicant had generalised anxiety, bipolar spectrum, drug use and various personality disorders.[17]
[17]Reasons, [56]-[58].
The judge also considered references from the applicant’s mother, maternal grandparents and the mother of his child, all of which spoke of the applicant’s love for that child and the benefit of the applicant’s drug counselling. References from two friends and a former employer were also considered.[18]
[18]Reasons, [59]-[64].
The judge said that each of the statutory sentencing purposes in s 5(1) of the Sentencing Act 1991 were relevant to the applicant, with specific deterrence and community protection being the most important in light of his previous convictions for drug trafficking.[19] Trafficking in a drug of dependence in not less than a commercial quantity was noted to be a very serious offence, calling for a sentence reflective of denunciation and general deterrence.[20] The judge also referred to the need for severe punishment for persons who breach family violence intervention orders.[21]
[19]Reasons, [65]-[67].
[20]Reasons, [68]-[69].
[21]Reasons, [70].
The applicant’s pleas of guilty were noted to have been indicated at the earliest reasonable opportunity. The judge found it to have significant utilitarian value, augmented by Worboyes[22] considerations, as well as being evidence of remorse. The judge found that overall the applicant’s guilty pleas required ‘a very significant discount’ on the sentences that would have been imposed in their absence.[23]
[22]Worboyes v The Queen [2021] VSCA 169 (Priest, Kaye and T Forrest JJA).
[23]Reasons, [72]-[77].
Next the judge addressed the applicant’s rehabilitation, finding his prospects to be ‘as good as can be expected in the face of a serious, longstanding addiction’.[24] The judge said that a great deal of effort would be required to overcome that addiction but accepted Ms Hutchinson’s opinion that:
This has been extremely challenging at times for [the applicant] after many years of using substances and with the life-style he had led. Given that addiction is a chronic relapsing disease with no known cure, [the applicant] knew that he was up against a challenge and he showed incredible determination and vulnerability to continue to ‘show up’ at our appointments always with a strong desire and purpose to create a different and better future.[25]
[24]Reasons, [79].
[25]Reasons, [78].
The judge also took into consideration the applicant’s very restricted custodial conditions in a management unit throughout the pandemic[26] as well the fact that his imprisonment was more burdensome for him than for the ordinary prisoner because the applicant’s anxiety was worsened as a result of his separation from other prisoners.[27]
[26]Reasons, [80].
[27]Reasons, [81].

Ground 1 - delay

Applicant’s contentions

The applicant contends that the judge failed to consider either limb of delay as a factor in mitigation of the applicant’s sentence in circumstances where there were three years between his arrest in 2019 and sentence in 2022. Through no fault of his own the applicant had the matter hanging over his head for that time. Further, the judge had evidence of the applicant’s rehabilitation over a lengthy period, first at The Cottage and then in ongoing drug counselling with Ms Hutchison. The early 2022 offending was not drug-related offending and involved charges of a different nature and lower level of objective seriousness. In written submissions filed in advance of the plea hearing, the applicant referred to ‘the age of the offending’ and the applicant’s progress on bail. The judge failed to make any reference to the issue of delay in his Reasons. If, in the absence of an express reference, the judge had considered both limbs of delay, the sentences imposed would have been lesser.

Respondent’s contentions

The respondent submits that no submission was made to the judge about the impact of delay upon the applicant. Despite that, the judge did consider the applicant’s rehabilitative progress from the date of his release on bail in 2019. That progress was tempered by the fact of further offending and the applicant’s admission to Dr Sullivan that he was drug affected at the time. Further, the delay in the matter was not ‘significant or inordinate’ given both the complexity of the factual matters relating to the trafficking charge (and the concomitant extended negotiation to resolve the matter) and the effect of the pandemic.

The respondent also submits that even if the judge erred in failing to have regard to delay, there is no reasonable prospect that the total effective sentence would be reduced. The offending was very serious. The individual sentence on the trafficking charge was moderate. That the judge afforded concurrency across almost all of the charges indicates the very real weight he gave to the applicant’s circumstances. The ‘very fair’ non-parole period reflects the judge’s finding as to the applicant’s prospects for rehabilitation.

Analysis

This Court summarised the import of delay as a factor in mitigation of sentence in DPP v Merryfull and Bloomfield[28] as follows:
It is beyond doubt that significant delay between the time an offender is charged and ultimately sentenced can be a powerful mitigating factor.[29] There are two limbs to the consideration of such delay: unfairness and rehabilitation.[30] In the absence of a prosecution concession as to their applicability, an offender seeking to rely on either or both limbs will be expected to adduce some evidence to support them.[31] A sentencing judge is not obliged to make separate reference to each limb, but reference to only one may give rise to a question as to whether the other received any weight in the sentencing synthesis.[32]
The unfairness limb concerns the anxiety caused by a charge hanging over an accused’s head. A report by a psychologist may satisfy the evidentiary requirement but ‘[t]here will also be cases where, depending on the duration, cause and other circumstances of the delay, a court may readily accept the delay caused anxiety to the offender without the need for supporting evidence.’[33]
The rehabilitation limb concerns whether, during the period of delay, an accused made progress towards rehabilitation. There are two aspects to this limb: remorse and reform. The first requires evidence of acceptance of responsibility for the offending, acknowledgment of its wrongfulness and expression of contrition. The second requires evidence of the steps an offender has taken to reform. Such evidence might include obtaining counselling or other professional assistance, refraining from committing any further offences and contributions made to the community.[34] Both remorse and reform must be demonstrated for a sentencing judge to give full weight to the limb. ‘Less than full weight will be accorded where reliance is placed merely on abstinence from further offending.’[35][36]
[28][2023] VSCA 244 (Emerton P, Macaulay and Taylor JJA) (‘Merryfull’).
[29] R v Merrett (2007) 14 VR 392 (Maxwell P, Chernov JA and Habersberger AJA); [2007] VSCA 1.
[30]R v Cockerell (2001) 126 A Crim R 444, 447 [10] (Winneke P, Buchanan and Chernov JJA); [2001] VSCA 239.
[31]Tones v The Queen [2017] VSCA 118, [38] (Maxwell P, Redlich and Kyrou JJA) (‘Tones’).
[32]Tones [2017] VSCA 118, [43] citing Rodriguez v DPP (Cth) (2013) 40 VR 436, 446 [37] (Warren CJ and Redlich JA).
[33]Tones [2017] VSCA 118, [39].
[34]Tones [2017] VSCA 118, [41].
[35]Tones [2017] VSCA 118, [42].
In the wealth of psychological, psychiatric and character evidence placed before the judge, there was no reference to any anxiety experienced by the applicant as a result of having the Indictment K12502007.1 charges hanging over his head. The applicant’s counsel made a single, oblique reference to ‘the age of the offending’ in written submissions filed in advance of the plea hearing, but developed no oral argument that the delay was of any particular quality or had caused any particular unfairness or harm to the applicant. In combination those matters present a significant hurdle to the applicant under cover of proposed ground 1 with respect to the unfairness limb of delay.
So much was acknowledged by the applicant’s counsel at the hearing of this application, but with reference to Stafford v The King,[37]counsel argued that the judge nonetheless ought to have, but did not, mitigate the sentence in recognition of the unfairness limb of delay.
[37][2022] VSCA 229 (Priest AP and Niall JA) (‘Stafford’).
In Stafford the delay between the offending and the initiation of charges was between 17 and 20 months. The delay between the charges and the trial was about 31 months. The sentencing judge had accepted a common position that such a delay was ‘inordinate’ and seemingly, without the benefit of any supporting psychological evidence,[38] also accepted a submission that the delay had caused ‘additional anxiety’.[39]
[38]That fact is not evident from the judgment. Counsel for the applicant also appeared in Stafford and informed the Court at the hearing of the application that no such material had been before the sentencing judge.
[39]Stafford, [27].
This Court said that the delay ‘imposed a heavy burden on all the parties involved including the appellant’, who was ‘very likely to have appreciated that he would be imprisoned’ and that having a sentence hanging over his head would have ‘weighed heavily’. Such a burden ‘must be acknowledged and taken into account by a sentencing judge as appropriate’.[40]
[40]Stafford, [28].
Stafford is no more than an illustration of the uncontroversial proposition that supporting psychological evidence is not always necessary for the unfairness limb of delay to operate in mitigation of sentence.
There are, however, features of Stafford that distinguish it from the instant case. Most obviously, the delay was greater and was raised as a factor relevant to sentence before the sentencing judge. Less obviously, the appellant in Stafford had faced charges of rape and attempted rape. He indicated that he would plead guilty to one charge but not guilty to others (which involved a different complainant). This Court’s observation that the appellant’s anxiety arose because he was ‘very likely to have appreciated that he would be imprisoned’ was partly so because of the uncertain outcome of the trial.
A period of delay between the issuing of charges and the imposition of a sentence is almost inevitable. Not every period of delay, or even every period of delay of or over a certain magnitude, will mitigate the sentence ultimately imposed. The duration, cause and circumstances of the delay will determine what, if any, weight should be given to the unfairness limb of delay in mitigation of sentence. In this case, in the absence of any submission or supporting evidence that the delay had caused particular anxiety to the applicant, it is not reasonably arguable that the judge erred by failing to consider generalised unfairness arising from it. Further, given the absence of evidence, had the judge expressly considered the issue, the weight to be given to the unfairness limb would have been slight.
Turning to the rehabilitation limb, it is clear that the judge did give effect to the applicant’s remorse and reform, to the extent that it was possible to do so, from October 2019 onwards. The judge accepted Ms Hutchinson’s description of drug addiction as a ‘chronic relapsing disease with no known cure’ and also accepted her opinion that the applicant’s efforts both during his residence at The Cottage and in subsequent counselling evidenced his strong desire to address his drug addiction. That is illustrated by the fact that notwithstanding that the applicant offended again (with respect to the family violence charges) and admitted to being drug affected at the time, the judge assessed the applicant’s prospects for rehabilitation to be ‘as good as can be expected’. That finding was expressly based upon the rehabilitative work the applicant had completed with Ms Hutchinson.
It follows that proposed ground 1 is not reasonably arguable.

Ground 2 – impaired intellectual functioning

Applicant’s contentions

The applicant submits that he has impaired intellectual functioning. Although the applicant’s counsel before the judge disavowed any reliance upon Verdins[41] principles other than limb 5, there was no forensic reason to do so. The expert material before the judge supported a finding that there was a connection between his intellectual deficits and the offending such as to reduce his moral culpability. Further, the disavowal of Verdins did not encompass a disavowal of Muldrock v The Queen[42]. The judge did not explain if or in what manner he considered the applicant’s intellectual disability in the formulation of the sentence.

Respondent’s contentions

[41]R v Verdins (2007) 16 VR 240 (Maxwell P, Buchanan and Vincent JJA).

[42](2011) 244 CLR 120; [2011] HCA 39 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Muldrock’).

The respondent submits that not only was no submission made that there was any link between the applicant’s intellectual functioning and his offending – indeed it was disavowed – such a link was not clearly established on the evidence tendered before the judge. Further, the personal circumstances of the applicant did not support any application of the Muldrock principles. He was educated to the end of Year 9 and thereafter maintained both skilled and unskilled work in the building industry, holding a number of licences and qualifications. The applicant had also successfully established a trucking business.

Analysis

In Brown v The Queen[43] this Court emphasised the requirement for ‘evidence-based decision-making’[44] when Verdins issues arise. That decision-making involves ‘a rigorous evaluation of the evidence’[45]:
What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.[46]
[43](2020) 62 VR 491; [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA) (‘Brown’).
[44]Brown, [61].
[45]DPP v O’Neill (2015) 47 VR 395, 412; [2015] VSCA 325, [68] (Warren CJ, Redlich and Kaye JJA).
[46]Brown, [61].
In this case, the evidence of the applicant’s impaired intellectual functioning was less than clear. In 2014 Dr Vowels assessed him as having a full scale intelligence quotient of 72 being ’just above the cutoff for disability’. She noted the applicant as having ‘compromised conceptual thinking with reduced reasoning’ due to his dysexecutive syndrome. Mr Healy said that his 2022 testings were consistent with Dr Vowels’ 2014 findings which indicated that the applicant ‘suffered a mild intellectual disability over quite a number of years’. Dr Sullivan initially assessed the applicant as falling in the low average to borderline range of intelligence and later revised that assessment, stating that he appeared to be within the average range of intellect.
In the expert evidence before the judge – tendered by the applicant – only Dr Sullivan addressed any causal link between the applicant’s functioning and his offending – and that was in the negative. The judge accepted that opinion.[47] The decision of the applicant’s counsel to disavow any reliance on Verdins principles (beyond principle 5) had a sound forensic basis.
[47]Reasons, [55].
In Muldrock the High Court said:
A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. 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.[48]
[48]Muldrock, 139, [54].
The evidence in this case was that the applicant’s IQ was 72 – above the cutoff for disability. He was also described as having a ‘mild’ intellectual disability. That is to be contrasted with the appellant in Muldrock, who was ‘significantly intellectually disabled’ and whose IQ was 62.
Further, the expert opinion before the judge was that the applicant’s dysexecutive syndrome created ‘greatest problems with perseveration, impaired new learning, impulsivity and compromised conceptual thinking with reduced reason and inability to shift off reinforced ideas or reactions.’ That opinion had to be assessed against both his personal background and the offending behaviour itself.
As submitted by the respondent, the applicant had worked in the building industry and gained various relevant qualifications. The reference from a former employer tendered by the applicant noted that he had worked as a machine operator and labourer, preparing excavations and material for works under construction. The author described him as a ‘very capable, hard working, polite person’. The 2019 drug offending involved a complex trafficking operation in which the applicant continuously traded in various quantities of cocaine to various customers and in the course of which he hid a gun and ammunition.
In those circumstances, and recalling Dr Sullivan’s opinion, the link between the applicant’s ‘mild’ intellectual disability and his offending – both the drug offending and the family violence offending – was tenuous at best. The applicant’s intellectual functioning provided no basis for a reduction in his moral culpability.
The error contended for by the applicant under cover of proposed ground 2 is not reasonably arguable.

Conclusion

The application for an extension of time in which to file an application for leave to appeal against sentence is refused.

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[36]Merryfull, [44]-[46] (citations in original).

[2024] VSCA 168

22 July 2024