Al Wahame v The Queen [2018] VSCA 4

1 On 25 August 2016, the applicant pleaded guilty in the County Court at Melbourne to a charge of recklessly causing serious injury (charge 1) and two summary charges of failing to answer bail (summary charges 3 and 4). He was sentenced on 2 September 2016 as follows:[1]

Crimes Act 1958 s 17

Bail Act 1977 s 30(1)

Bail Act 1977 s 30(1)

7 years and 6 months' imprisonment with a non-parole period of 5 years and 6 months

2 The applicant now seeks leave to appeal his sentence.

3 The applicant has proposed the following grounds of appeal:

1. The Applicant should be resentenced by this Court in light of fresh evidence that he suffers from an intellectual impairment that was present but not fully understood or diagnosed at the time of sentence. The Applicant's intellectual impairment enlivens the principles considered in R v Verdins and thus necessitates a reduction in sentence.

2. The individual sentence on Charge 1, along with the non-parole period imposed on the Applicant, are each manifestly excessive. In particular, having regard to:

1. The objective seriousness of the offending and current sentencing practices for comparable offending;
2. The insufficient weight attributed to the primacy of rehabilitation in light of his youth; and

1. General factors in mitigation including the Applicant's disadvantaged background, intellectual deficit and plea of guilty.

4 In the course of the hearing before us the applicant was granted leave to rely upon the fresh evidence referred to in proposed ground 1. Upon the admission of that evidence the sentencing discretion was re-opened and it became unnecessary to address proposed ground 2.[2]

The circumstances of the offending[3]

5 On the evening of 30 October 2015 Paul Brown, a person unknown to the applicant, had worked late. He went to a kebab outlet in Vaughan Street, Shepparton. The applicant and his then girlfriend had gone to the outlet earlier. They had had an argument. The applicant's girlfriend had left and the applicant had followed her yelling at her as they walked down Vaughan Street. There they came upon Mr Brown.

6 As the applicant's girlfriend walked away from the applicant she heard him yell out:

What the fuck are you looking at?

Why are you looking at me? You wanna fight?

She turned around and saw the applicant arguing with Mr Brown. She observed that Mr Brown was not aggressive in any way. He was standing there looking at the applicant, apparently confused about why the applicant was yelling at him.

7 Mr Brown tried to walk around the applicant, but the applicant pushed him in the chest. What then occurred is depicted on CCTV footage which was tendered on the plea.

8 We have carefully watched the CCTV footage a number of times.[4] What the CCTV footage shows is Mr Brown walking backwards away from the applicant whilst lifting both arms up in what is obviously a gesture designed to communicate to the applicant that Mr Brown offers no threat to him and that he is, in effect, 'surrendering'. The applicant then punches Mr Brown with his left fist, hitting him on the right side of his face. The force of the blow causes Mr Brown to fall uncontrollably onto the road. Mr Brown remains motionless on the road. The applicant walks away.[5]

9 The CCTV footage shows Mr Brown motionless, apparently unconscious, on the ground for some minutes whilst bystanders attempt to assist. One of them is on a mobile phone. An ambulance attended the scene.

10 Mr Brown was attended to by ambulance staff and taken to the local hospital where on examination it was revealed that he had suffered a skull fracture and bleeding on the brain. He was subsequently transferred to Melbourne for specialised treatment.

11 A CT scan of Mr Brown showed a right subdural haematoma and traumatic subarachnoid haemorrhage with left occipital fracture.

12 The CT scan also revealed a right trigonal meningioma tumour. Mr Brown underwent an operation to remove that tumour in November 2015. The tumour is unrelated to the injury caused by the applicant.

13 Mr Brown suffered a traumatic brain injury of moderate severity. The operation to remove the tumour is likely to have contributed to his condition.

14 Mr Brown has suffered significant and ongoing impairments in his functioning at a social, interpersonal, vocational and familial level. He has been diagnosed as suffering a major depressive disorder. At the time of the offence he was 46 years of age, married, with four children. The devastating impact of this offence on Mr Brown and his family is set out in the victim impact statements of himself and his wife. He has not fully recovered and he may never fully recover.

The applicant's background and prior convictions

15 The applicant was born on 5 September 1996 in Beirut, Lebanon. At the time of the offence he was 19 years of age.

16 According to a report of the psychologist, Warren Simmons, dated 27 July 2016 ('the first Simmons report'), which was tendered on the plea, the applicant migrated to Australia at the age of 10. His father had come to Australia earlier and the applicant, with his mother and siblings, then joined him. The applicant has three older siblings and two younger siblings. The applicant described his early childhood in Lebanon to Mr Simmons. The family struggled financially. They lived in a very impoverished part of Beirut. The applicant was exposed to a great deal of violence and thuggery.

17 According to what the applicant told Mr Simmons, he initially found it difficult moving to Australia and he struggled at school. He apparently learned English quickly, and things then improved.

18 The applicant told Mr Simmons that he was introduced to cannabis by a relative at about the age of 12 and was introduced to methylamphetamine at the age of 14. By the age of 15 he was using amphetamines daily. The applicant had also been introduced to alcohol at a young age and he told Mr Simmons that he was eventually drinking daily, up to two bottles of alcohol a day. He also used other drugs on occasions.

19 The applicant told Mr Simmons that he had had a relationship with an older woman as a result of which he has a son. That relationship did not last. He has had other short term relationships.

20 A pre-sentence report by the Department of Health and Human Services on the applicant's suitability for a youth justice centre order dated 1 September 2016 ('the DHHS report') was before the sentencing judge. That report contained the following passage in relation to the applicant's family circumstances:

According to Child Protection files, there were reports that Mohammad had been injured by his father in February 2012. Police attended and had to physically intervene and restrain his father. There was ongoing conflict in the home and in March 2012, shortly after he began offending behaviour, his parents relinquished his care to Child Protection. He then mainly lived in residential care or in custody during the next three years.

Mohammad lived briefly with his sister Fatma and her partner in Melbourne during a period of parole in early 2014, however, the relationship deteriorated and he reoffended and was returned to custody.

Mohammad lived with his parents in Shepparton during three months on parole between February and May 2015.

21 The applicant has an extensive criminal history. He has been dealt with on many occasions for driving, drug and dishonesty offences. For present purposes, we confine ourselves to his prior offending involving violence or danger to the public.

22 On 29 June 2011, when the applicant was 14 years of age, he was placed upon probation without conviction in the Shepparton Children's Court for offences of threat to inflict serious injury, unlawful assault, and possession of a controlled weapon.

23 On 21 January 2013, when he was 16, the Shepparton Children's Court made a youth supervision order for a period of six months in relation to him, without conviction, for driving and dishonesty offences (including drive in a manner dangerous) and for offences of assault operational staff (ambulance) and discharge missile to cause injury/danger. The applicant breached that youth supervision order. On 22 July 2013, at the Shepparton Children's Court, he was dealt with for a number of offences, including unlawful assault, and for the breach of the earlier youth supervision order. He was again released without conviction on a youth supervision order. The applicant also breached that order.

24 On 21 November 2013, when the applicant was 17 years of age, he was convicted in the Shepparton Children's Court of dishonesty and driving offences (including reckless conduct endangering serious injury), a drug offence, and an offence of possession of a controlled weapon. He was ordered to be detained in a youth justice centre for a period of 12 months. For breach of prior supervision and attendance orders, he was ordered to be detained in a youth justice centre for a period of three months.

25 On 3 March 2014 he was dealt with in the Shepparton Children's Court on charges of unlawful assault and criminal damage and was fined without conviction.

26 On 29 August 2014 he was convicted in the Melbourne Children's Court on two charges of recklessly cause injury and was ordered to be detained in a youth justice centre for a period of six months.

27 On 15 January 2015, having now turned 18 years of age, he was convicted in the Melbourne Children's Court on two charges of recklessly cause injury and received an additional effective term of detention in a youth justice centre of four months.

28 On 8 September 2015, the applicant, having just turned 19 years of age, was convicted in the Shepparton Magistrates Court of a number of driving and dishonesty offences including dangerous/negligent driving while pursued by police and reckless conduct endangering serious injury. It is apparent from the Court record that he had been held in custody for 56 days prior to this hearing. Thus, he had been in custody from mid July 2015. A term of imprisonment of 56 days, equal to the time already served, was imposed. A community correction order for 18 months commencing on the day of the hearing, 8 September 2015, was made. Seven and a half weeks later the assault on Mr Brown occurred.

29 The applicant was located by police not long after the assault and was taken to Shepparton Police Station.

30 The Summary of Prosecution Opening summarises what the applicant told police when interviewed. Relevantly, it reads as follows:

When asked to give his side of the story about the assault, he said that he had an argument with his girlfriend, went outside, then claimed that BROWN got in his face and pushed him. When someone pushes him, he doesn't take it. He felt like he was in danger and used his fist (Q 15).

BROWN pushed him with two hands and AL WAHAME 'just snapped out of it and just - I swung at him' (Q 34).

He had not had any alcohol or drugs that night (Q 71).

If he was calm it wouldn't have happened, but he was already angry (Q 75).

Now that he'd come to his senses, he felt sorry for the poor bloke. BROWN didn't deserve it and he shouldn't have done it (Q 95-96).

31 The CCTV footage reveals key aspects of this account to be untrue. When the applicant hit Mr Brown he was walking backwards with his arms outstretched. The applicant was in no danger from Mr Brown. He did not hit him as an immediate response to being pushed. Further, the applicant's girlfriend did not see any push. The Summary of Prosecution Opening states that she observed that Mr Brown 'was not aggressive in any way.'

32 The applicant was bailed at the police station on the night of the offence to appear at the Shepparton Magistrates Court on 11 January 2016. He did not appear that day and a warrant was issued for his arrest. He was arrested on 13 January 2016 and again bailed to appear at the Magistrates Court, this time on 1 February 2016. He again failed to appear. The two summary offences of failing to answer bail concern these two failures to appear.

33 The applicant was arrested and remanded in custody on 3 February 2016. He remained on remand until his plea hearing and sentence. The DHHS report contains the following information in relation to his progress in custody at that time:

According to Anne Hooker, Youth Development Officer at Port Phillip Prison, Mohammad has spent no time in the youth unit whilst on remand. He is classified at the highest level of drug use/dependency and has been placed in a unit with adults in that category since February this year.

Ms Hooker reported that there are seven incidents recorded on Mohammad's file since entering the prison. In February, there were two incidents of unable to provide drug test and an injury where he suffered a black eye. In April, an incident of graffiti and also pills and smoking paraphernalia found in his cell. A medical issue in June and also drugs found under his mattress. In July, Mohammad returned a positive drug screen.

...

Mohammad states that he had paid work for a short time in the prison laundry and earned $25/week, but he was exited due to failing to obey a direct order.

...

Mohammad claims to have completed a drug and alcohol program since being on remand, but he could not remember any details.

34 There was a plea hearing on 25 August 2016 and the matter was adjourned to 2 September 2016 for assessments to be undertaken, one of which resulted in the DHHS report.

35 At the hearing on 2 September 2016, counsel for the applicant referred the sentencing judge to observations about the applicant's cognitive functioning contained in the DHHS report.

36 In particular, counsel referred the judge to a passage concerning a cognitive assessment conducted by Dr Frank Muscara in August 2015 for a Children's Court Clinic report. The DHHS report states that Dr Muscara had found that: '[the applicant's] cognitive functioning across all areas was at a low level and that his scores fell within the range of a mild intellectual disability'.

37 The applicant's counsel sought an adjournment to obtain a copy of the Children's Court Clinic report. The potential for the principles set out in R v Verdins[6] to apply was the basis of the application.

38 The transcript reveals that the sentencing judge would have allowed an adjournment to enable the applicant to obtain a copy of the Children's Court Clinic report, and that the respondent did not oppose an adjournment for that purpose.

39 An exchange between the sentencing judge and the applicant then followed. During this exchange the applicant expressed frustration about the prospect of an adjournment and expressly stated that he did not want an adjournment. He said he wanted to be 'sentenced today.' The sentencing judge explained to the applicant, the importance of the issues raised by his counsel and observed that counsel was 'concerned to know whether or not the sentence may be lower than otherwise it might have been if there's access to the report.'

40 The sentencing judge then allowed a brief adjournment for counsel to take instructions on the matter, after which counsel for the applicant advised the Court of his instructions in the following terms:

Your Honour, thank you for that opportunity to speak with my client. My client understands the choice that's before the court and the choice that I'm asked to make. He understands the effect that the report may have on his plea and his eventual sentence, and he has instructed me to ask Your Honour to press on with sentence today. His preference is to be sentenced as early as possible and to move prison facilities as early as possible. That being my instructions, I'm bound not to advance the point I raised in relation to Verdins and the Children's Clinic report.

41 The sentencing judge then proceeded to sentence the applicant.

42 The fresh evidence on which the applicant relies comprises a second report of the psychologist Warren Simmons dated 14 February 2017 ('the second Simmons report') and a report of the clinical neuropsychologist, Jane Lofthouse, dated 7 April 2017 ('the Lofthouse report'). In the hearing before us counsel for the respondent submitted that the fresh evidence should be admitted and sought leave to cross-examine Ms Lofthouse. We made orders granting leave to rely on the fresh evidence and granting leave to cross-examine Ms Lofthouse. Ms Lofthouse's attendance had been pre-arranged, and she gave evidence in chief and was cross-examined.

Evidence as to cognitive ability before the sentencing judge

43 Before turning to the fresh evidence, it is necessary to review the material that was before the sentencing judge which addressed the applicant's cognitive ability.

44 The DHHS report relevantly stated the following:

Intellectual Disability

On 15/08/2015, a cognitive assessment for a Children's Court Clinic report was conducted by Dr Frank Muscara. He found that Mohammad's cognitive functioning across all areas was at a low level and that his scores fell within the range of a mild intellectual disability.

Further, his profile suggested that he has executive function difficulties, which will affect his impulse control, his ability to manage his emotions, and his ability to reason and see the 'bigger picture' when making decisions and judgements. This is compounded by his lower level of intellectual functioning and concrete thinking.

Follow-up assessments were conducted, however, it was deemed that Mohammad 'does not have a disability as defined in the Act.'

45 The sentencing judge also had the first Simmons report.

46 The first Simmons report set out the applicant's personal, educational, employment, drug and alcohol, relationship, medical, psychiatric and forensic history, to some of which we have already referred.

47 Under the heading 'medical and psychiatric history' the report stated that the applicant was 'sad and angry and sometimes depressed', but that there was no evidence he was experiencing any major psychiatric disorder.

48 The final section of the report set out the psychologist's opinion. The author observed that the applicant seemed to have 'a great deal of competence in English, given that he only began learning [English] at the age of 10'. Mr Simmons observed that the applicant appeared to have lost the support of his family and that whenever he was released into the community he appeared to embrace an anti-social and negative peer group with the result that his behaviour deteriorated and he committed offences. Mr Simmons said that from discussions with the applicant he had concluded that the applicant viewed his lifestyle as 'quite positive' and that he had a 'level of cachet' which boosts his self-esteem. Mr Simmons reported the applicant as being frustrated at spending time in custody and observed that the applicant struggles to make the connection between his criminal behaviour and what he finds attractive in that life and the fact that he ends up in custody. Mr Simmons said that the matters before the court would appear to be a continuation of a pattern of behaviour which had existed for some time. Mr Simmons observed that the applicant appeared to have a range of offending and significant anti-social personality traits. He observed that his difficulties have developed in the context of a person who has had a somewhat difficult background. Mr Simmons' final observation was as follows:

At the present time, it is likely that there will be further offending behaviour in the future unless Mr Al Wahame is able to make significant changes which without the support of his parents and family, he will struggle to do.

49 After he was sentenced Mr Simmons conducted a further interview with the applicant on 7 February 2017 and produced a second report, dated 14 February 2017 ('the second Simmons report'). This report is part of the fresh evidence.

50 In his second report, Mr Simmons noted that the applicant:

made good eye contact, but was somewhat casual at times, seeming relaxed and not entirely interested in the interview. Nevertheless, he was compliant although not fully engaged.

...

He was orientated in time, place and person with there being no evidence of disorders of thought or perception.

51 The report repeated much of the history set out in the first Simmons report.

52 The major changes between the two reports in relation to the applicant's medical and psychiatric history are: the inclusion of reference to two significant motor vehicle accidents in which the applicant had been involved, reference to the applicant having sleep difficulties, a reference to the fact that the applicant was not enjoying activities in prison, an observation that the applicant does appear to be experiencing symptoms of depression, and the removal of the statement in the first Simmons report to the effect that there was no evidence of major psychiatric disorder.

53 The second Simmons report set out the following in relation to psychological testing of the applicant:

Mr Al-Wahame undertook the Kaufman Brief Intelligence Test, a screening test for intelligence that provides a rapid indication of a person's intellectual ability. Mr Al-Wahame's verbal IQ score was 57, which puts him at the 0.2 percentile, meaning that 99.8% of people would do better than him in verbal tasks. His non-verbal IQ score was 44, putting him at less than the 0.1 percentile, meaning that more than 99.9% of individuals would do better than Mr Al-Wahame. His composite score was 45, a score at less than the 0.1 percentile, meaning that more than 99.9% of people would do better than Mr Al-Wahame. His verbal, non-verbal skills and total score would put him in the disabled range of intellectual functioning.

While Mr Al-Wahame scores appear to be quite low, it was felt that these may have underestimated his ability and do not appear to be consistent with what his reported educational achievements were. However, it must be acknowledged that Mr Al-Wahame may very well have overstated these. Testing was undertaken towards the end of the interview and Mr Al-Wahame's attitude to testing suggested that he was not highly motivated and may have been able to bring greater effort. However, it was felt that even if Mr Al-Wahame's score was at a higher level, it was unlikely to be much more than the borderline range at best.

In addition, Mr Al-Wahame completed the Montreal Cognitive Assessment Test, a screening tool to determine whether the individual may have cognitive deficits, although it does not offer in-depth assessment. Mr Al-Wahame's score was 10 points below what is considered normal with Mr Al-Wahame demonstrating significant issues with memory, attention and some executive functioning. These results do suggest that further neuropsychological assessment including a full intelligence test would be warranted.

54 The author then set out his opinion on the applicant, which included the following relevant observations in relation to his intelligence and cognitive functioning:

Testing suggested that Mr Al-Wahame may be intellectually disabled, although it was felt that the results most likely underestimated his ability given the reasons above. Nevertheless, it was felt that Mr Al-Wahame certainly struggles intellectually with there being clear evidence that there may very well also be some cognitive impairments, although the exact cause of these is uncertain. However, they do go some way to explaining the fact that Mr Al-Wahame does not appear to be able to make connections between his behaviour, what he desires with regard to his self-esteem and the fact that he continually finds himself in custody. In addition, he seemed to struggle to understand that if he wants his experience in prison to be less problematic, then it is certainly the case that he should change his behaviour towards authority when in custody. Again, it may also be that this is driven by his desire to boost his self-esteem although, it is unlikely to be something that he will win in the long term. It seems that he will experience a more difficult time in custody than others.

...

In addition, Mr Al-Wahame would certainly benefit from a full neuropsychological assessment looking at both his intelligence and his overall level of cognitive functioning. There are certainly indications that Mr Al-Wahame has a limited intellectual ability as well as cognitive deficits. Further testing would be able to ascertain the degree to which these may be impacting on Mr Al-Wahame's behaviour and that some of his irritability may be related to frontal lobe impairment and an inability to inhibit behaviour and make appropriate judgements.

55 The second item of fresh evidence which was admitted is the Lofthouse report.[7] Ms Lofthouse carried out the neuropsychological assessment Mr Simmons had recommended. The respondent accepted Ms Lofthouse's qualifications as an expert in neuropsychology.

56 The Lofthouse report sets out the material with which she had been provided which included: the first Simmons report and the second Simmons report; the DHHS report; a community correction order assessment outcome report, a court report prepared by Ms Lechner, a clinical psychologist, the assessment date being 5 June 2013; the Summary of Prosecution Opening; and the Victoria Police criminal history report.

57 The Lofthouse report is very detailed. As she made clear in her subsequent oral evidence, the conclusions she reached were primarily based upon a suite of tests which she administered. The results of those tests were described in her report in some detail. It is necessary to set out some lengthy extracts from her analysis of the results. Her report states:

Mr Al-Wahame completed a range of standardised tests including the Wechsler Adult Intelligence Scale, which provides a measure of intellectual function across the areas of verbal and nonverbal problem solving, working memory and speed of information processing. Mr Al-Wahame's overall score on these tests, as expressed in his Full Scale Intelligence Quotient, was 61 and within the extremely low range. Although this score is significantly depressed and below Mr Al-Wahame's predicted premorbid intellectual function it appears that Mr Al-Wahame's Full Scale Intelligence Quotient is somewhat depressed by his slow speed of mentation. This cannot however fully account for the significant impairment noted across Mr Al-Wahame's scores. There was no significant variation noted between Mr Al-Wahame's ability to process and understand verbal in comparison to nonverbal material with the majority of his scores falling in the lower end of the borderline range. There would appear to be some mild deviation between Mr Al-Wahame's current function and his predicted premorbid intellectual level suggestive of the presence of a degree of acquired brain injury.

...

Of particular concern is Mr Al-Wahame's impairment across a range of frontal lobe tests where he demonstrated a moderate level of executive dysfunction marked by rigid problem solving, poor mental flexibility, impaired abstract reasoning and a limited planning ability. This was noted in his dealing with verbal and nonverbal material and will place Mr Al-Wahame in a position where he will experience problems when he is required to make reasoned, flexible and informed decisions. Typical of executive dysfunction Mr Al-Wahame also demonstrates a pattern of behavioural deregulation marked by over learnt and impulsive violent responses. This type of behaviour was noted during the assessment with Mr Al-Wahame becoming agitated and angry at times. Examination of prior reports also suggest that Mr Al-Wahame's violent behaviour is longstanding having emerged during adolescence. Mr Al-Wahame struggles to recognise and take responsibility for his violent behaviour including his criminal offending, believing that aggression is the method he can utilise to deal with people that 'push him'. This type of thinking and lack of insight is often noticed in the presence of executive dysfunction. Mr Al-Wahame also described witnessing violence in Lebanon as a child with reports suggesting that his father was also violent. In addition to executive dysfunction psychological factors are likely to play a part in Mr Al-Wahame's reliance on violent behaviour.

...

Mr Al-Wahame will struggle to benefit from rehabilitation programs that may allow him to learn strategies to ameliorate the effects of his intellectual impairment and assist him to understand his behaviour. Of particular importance will be addressing Mr Al-Wahame's drug and alcohol use which will place him at further risk of inappropriate, disinhibited and violent behaviour such as noted in his criminal offending. Due to compounding factors Mr Al-Wahame has little insight into his criminal behaviour and struggles to place boundaries around his violent responses. This will be a major complication in Mr Al-Wahame's capacity to undertake rehabilitation programs but they should not be discounted.

Due to the factors as discussed above Mr Al-Wahame is likely to find a period of incarceration more difficult than a person who does not suffer from psychological issues, behavioural deregulation and/or intellectual impairment. He will require added supervision.

Mr Al-Wahame has demonstrated a pattern of poor compliance with Court orders and understanding and controlling his behaviour. The factors discussed above including intellectual impairment, psychological distress, negative personality traits, mixing with a negative social group and alcohol and drug intoxication are all likely to have contributed to Mr Al-Wahame's criminal offending and failure to complete Court orders. Mr Al-Wahame's significant intellectual deficits will impinge on his ability to make reasoned and informed decisions and due to this he will struggle to fully understand Court proceedings, have insight into his behaviour and/or consider his options in a coherent manner. Intellectual impairment would have impinged on Mr Al-Wahame's ability to understand the significance of obtaining a neuropsychological assessment to establish the possible presence of intellectual impairment and how this might be used as a mitigating factor in the consideration of the length of his sentence.

Whether Mr Al-Wahame's intellectual impairment is related to traumatic brain injury, alcohol and drug use, other long standing issues or a combination of them all it is likely that intellectual impairment was present at the time of his criminal offending and was a significant contributing factor in his uncontrolled and violent behaviour. In addition, Mr Al-Wahame's pattern of violent response is well-established, easily cued and poorly understood by Mr Al-Wahame all of which also contribute to his criminal offending.

Intellectual deficits such as Mr Al-Wahame demonstrated at this assessment, chronic drug and alcohol use, psychiatric issues, a lack of insight and behavioural deregulation are factors that will need to be addressed to reduce Mr Al-Wahame's reliance on inappropriate and violent responses. Mr Al-Wahame will benefit from engaging in treatment with an appropriately experienced professional who can develop an initial plan to begin to address the above factors. Monitoring of Mr Al-Wahame's achievements will assist in developing effective long term interventions.

58 Ms Lofthouse was called to give evidence and, in evidence in chief, she repeated, in substance, the relevant matters referred to in her report. When asked specifically about drug and alcohol use she said that if the applicant was able to adjust his drug and alcohol use that would be one factor that would decrease his impulsive and ill-considered behaviours. She described drug and alcohol issues as 'one of the major factors in his inappropriate violent behaviour.' She confirmed that she drew the conclusion that the applicant does have 'some brain injury' against a background of a low intellect. She observed that verbal and non verbal problem solving was assessed at 70 and 73 respectively, whereas tests concerning his speed of mentation were very low, at 50, which depressed his overall full scale intelligence quotient.

59 In cross examination, Ms Lofthouse confirmed that as a result of her conversations with the applicant she considered that he had 'little or no insight into his offending'. She said that the pattern of test results was consistent with acquired brain injury which she felt was at the mild to moderate level. She indicated that on a range of average, mild, moderate, and extremely low she would place the applicant between mild and moderate.

60 She was challenged by counsel for the respondent on the issue of whether the applicant's intellectual impairment contributed to the offending. In cross examination she expressed her conclusion in diffident terms. She said that she did not believe that there was 'no contribution'. She emphasised that there were 'a lot of factors', she said that she believed the intellectual impairment 'contributed in some way', and that it was 'most possible' that it was a significant factor, observing that there were other factors as well including his drug and alcohol use and his background.

61 As to prospects of rehabilitation, Ms Lofthouse said that whilst rehabilitation would be very difficult it could not be said to be impossible.

62 When the diffident terms in which she had expressed her opinion as to the contribution of his impairment to the offending were put to her by a member of the bench she responded: 'I guess based on his very low test scores, I think that will impinge to a large extent on his actions.'

63 Ms Lofthouse confirmed that her conclusion was consistent with Dr Muscara's earlier reported conclusion of the existence of a 'mild intellectual disability', but she emphasised that a 'mild intellectual disability' is still significant although less so than a disability which might be described as moderate or severe.

64 Ms Lofthouse explained why she considered that the test outcomes were a reliable basis upon which to assess the applicant's true capacity. She was not challenged on that.

65 When asked by a member of the bench whether in her opinion Mr Al-Wahame represented a very significant danger to the community she said: 'I think based on his test scores and his past behaviour he does present as a risk, yes, to the community.' In that context she agreed that the relevant factors were a lack of insight, the history of violence, and her lack of optimism in relation to rehabilitation.

66 The applicant relied upon the matters which had been relied upon before the sentencing judge. They were:

(c) the applicant's traumatic and disadvantaged background;

(d) remorse which the applicant had expressed, and 'some' prospects of rehabilitation';

(e) the prosecution's concession that not all of the victim's injuries were likely to be a direct result of the applicant's actions, as the CT scan had revealed a pre-existing brain tumour; and

(f) the applicant's intellectual deficits (insofar as they had been known to the sentencing court).

67 Before us, the focus of the submissions was the fresh evidence, but counsel for the applicant also made submissions in relation to the applicant's current insight and attitude to his offending.

68 Counsel for the applicant said that the applicant's time in prison had had a very significant effect upon him. One of the reasons why the applicant had been anxious to be sentenced without further delay on 2 September 2016 had been his desire to be moved out of the unit in which he was then incarcerated because of his fear of the serious offenders with whom he was imprisoned. It was submitted that his exposure to 'the very worst offenders in the State' had given him insight into his need for rehabilitation.

69 Counsel for the applicant placed significant emphasis on the Lofthouse report and upon her oral evidence. It was submitted that the principles in Verdins applied and that moral culpability should be reduced and both general and specific deterrence moderated. It was submitted that imprisonment will be more burdensome for the applicant than a person without his disability.

70 When asked about the application of what had been said in Veen v The Queen [No 2][8] as to the potential 'countervailing effects' of a mental abnormality which diminishes moral culpability but which makes an offender a danger to society, counsel for the applicant accepted that that was an important consideration but submitted that, particularly with a youthful offender like the applicant, considerations of rehabilitation should prevail.

71 The respondent submitted that the sentence which had been imposed, six years' imprisonment with a non-parole period of four years and six months, remained the appropriate sentence taking into account the fresh evidence. It was submitted that the Court should not find that there was a nexus between the intellectual impairment established by the fresh evidence and the offence, or, if there was any nexus it was not a significant or substantial one such as should lead to any significant effect upon moral culpability.

72 It was submitted on behalf of the respondent that the decision in Verdins was 'misleading' in that it did not include in the analysis the considerations of risk to the community and prospects of rehabilitation. It was submitted that the principles which should be applied were those set out by the High Court in Muldrock v The Queen.[9] The respondent submitted that this is a case where the countervailing effects referred to in Veen [No 2] do balance each other out.

73 Counsel for the respondent submitted that there ought to be slight moderation to general deterrence and specific deterrence but no effect on moral culpability or very little effect. It was accepted that the burden of imprisonment would be increased, but it was submitted that the fresh evidence meant prospects of rehabilitation had to be 'very guarded'. The fresh evidence had revealed that the need for protection of the community was 'elevated'. Counsel finally suggested that the length of the non-parole period which had been imposed might be considered 'slightly unusual'.

74 In our view the applicable legal principles concerning the applicant's mental impairment are those set out by this Court in Verdins and by the High Court in Muldrock and Veen [No 2]. We do not consider that there is any inconsistency in those authorities.[10]

75 In Verdins this Court indicated that impaired mental functioning can be relevant to sentencing by reducing moral culpability, by having a bearing on the kind of sentence that may be imposed, by moderating or eliminating general and/or specific deterrence, by leading to a conclusion that a given sentence will weigh more heavily on an offender, and by leading to a conclusion that a risk of imprisonment might have a significant adverse effect on the offender's mental health.

76 Moral culpability will not be reduced, and general and specific deterrence will not be eliminated or moderated, unless there is demonstrated to be some realistic connection between the mental impairment and the offending. The impairment must have contributed to, be connected to, or explain the offending.[11]

77 In Veen [No 2] the High Court relevantly said the following:

a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.[12]

78 As Gleeson CJ observed in R v Engert,[13] in a particular case a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time, increase the importance of deterrence of the specific offender.

79 In Muldrock the High Court addressed the position of an offender with a similar intellectual impairment to the applicant. The Court referred to the principle that general deterrence may not have significant weight in the case of an offender suffering from a mental disorder or abnormality where that offender is not, by reason of that disorder or abnormality, an appropriate medium for making an example to others. The High Court said:

The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. 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 the 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.[14]

80 The applicant's youth is a relevant matter. Generally, where a youthful offender such as the applicant is to be sentenced, rehabilitation would be far more important than general deterrence.[15] But this general proposition must be applied by reference to the particular circumstances of the case. Where the offending involves serious violence, considerations generally applicable to youthful offenders may have less significance.[16]

81 The offence of recklessly causing serious injury is a serious one. It carries a maximum penalty of 15 years' imprisonment. The particular offence in question here was a very serious example of that offence. The applicant carried out an unprovoked attack on a complete stranger in a public street. At the time the applicant hit the victim, the victim was walking backwards with both his arms raised in a gesture of submission. The applicant punched him to the head causing an immediate loss of consciousness. The victim suffered a traumatic brain injury from which he has not fully recovered. The effect on the victim and his family has been very significant.

82 Violence of this kind by young offenders in public is a matter of significant public concern.

83 The applicant had a difficult childhood. He was born into a war torn country and had to migrate at a young age to a country very different from that in which he had spent his early childhood. He seems to have had a poor relationship with his father. He was introduced to drugs and alcohol at an early age. As a result of an incident in which his father had had to be restrained by police, he was taken away from his family and placed in residential care. The breakdown in his relationship with his family seems to have coincided with the beginning of his offending.

84 The applicant has a very bad history of offending, commencing at the age of 14. He has committed many offences of violence or offences involving danger to the public. As one would expect, he was initially dealt with by non-custodial dispositions. He almost invariably breached them. He was then dealt with by detention in a youth justice centre. That appears to have had no effect upon his behaviour. Eventually, he came before an adult court and served a short term of imprisonment. He was then released on a community correction order of 18 months' duration. Less than two months after that release he assaulted Mr Brown. After the assault he left the scene. When initially apprehended by police he gave a false account of what had occurred. When bailed, he failed to appear on two occasions. While on remand he demonstrated an inability to comply with prison rules. He returned a positive drug screen. His counsel submitted that his attitude has now changed. One would hope so, but that remains to be seen.

85 The applicant pleaded guilty and he is entitled to a discount on his sentence for that. His youth remains a relevant consideration, although its significance is reduced by the nature of the offences; his criminal history, particularly his violent offending and the many opportunities he has been given by way of non-custodial dispositions; and his prospects of rehabilitation

86 The fresh evidence relied on before us establishes that the applicant has a mild intellectual disability. This is a significant impairment, notwithstanding the denomination 'mild' which differentiates it from a disability which would be severe or extreme. As a result of the applicant's impairment he has a reduced ability to exercise appropriate judgment and to make calm and rational choices.

87 The fresh evidence also reveals that the applicant demonstrates a pattern of behavioural deregulation marked by agitation, anger and violence. He has little or no insight into his offending. Rehabilitation will be very difficult but perhaps not impossible. The applicant represents a very significant danger to the public.

88 The applicant's mental impairment does reduce the moral culpability of his offending, but it does not do so to a significant degree. His mental impairment is one of a number of factors which contributed to his offending. The other factors are, as stated by Ms Lofthouse, psychological distress, negative personality traits, mixing with a negative social group, and alcohol and drug intoxication. Similarly, general deterrence does need to be moderated given the applicant's mental capacity, but as that is only one factor which contributed to his offending the moderation in his case should not be great. By reason of the applicant's disability, prison will be more difficult for him than it would be for a person without such a disability.

89 The need for specific deterrence is elevated by the matters revealed in the fresh evidence. The applicant represents a very significant danger to the community. He has little or no insight. The prospects for his rehabilitation are not good and will require very significant changes in the applicant's personality and attitudes.

90 The six year sentence imposed on the applicant by the sentencing judge was an appropriate sentence on the basis of the material which was before him, in our view. Having considered the fresh evidence, we have concluded that no different sentence should be imposed. This is a case where the mental condition which diminishes the applicant's moral culpability and the significance of general deterrence, also reveals that he is a danger to society and elevates the need for specific deterrence.

91 We have separately considered the non-parole period.

92 The non-parole period is the minimum time which justice requires be served having regard to all the circumstances of the offending.[17] There is no legal principle which mandates a 'normal' or 'usual' non-parole period.[18] Periods of 60-66 per cent of the head sentence are commonly applied, and a period of 75 per cent or more may invite scrutiny.[19]

93 The non-parole period here of four years and six months is 75 per cent of the term of imprisonment. We consider that that period is the correct one given the circumstances of the offence. The term fixed is the minimum term justice requires, in our view. Prospects of rehabilitation are also significant on this issue.[20] As matters stand, notwithstanding the applicant's youth, the best that could be concluded is, as Ms Lofthouse said, that rehabilitation is not impossible. The applicant's poor history of compliance with non-custodial supervision is also of relevance.

94 Insofar as it is necessary to state the sentence we would have imposed had the applicant not pleaded guilty, we would have imposed a sentence of seven years and six months' imprisonment like the sentencing judge, but fixed a longer non-parole period of six years.

95 The applicant should have leave to appeal, as the matter was arguable, but the appeal should be dismissed.

[1] DPP v Al Wahame [2016] VCC 1309 ('Reasons').

[2] R v Nguyen [2006] VSCA 184 [36].

[3] This account of the offending is drawn from the Summary of Prosecution Opening tendered on the plea, and a DVD of CCTV footage also tendered on the plea.

[4] One reason why we have done so is because of the sentencing judge's observation at paragraph [8] of the Reasons that all he could see was 'an obscure movement just to the top right hand corner of the CCTV'. The CCTV footage does depict the matters we have set out.

[5] This account of the circumstances is also set out in the Summary of Prosecution Opening, 16 August 2016.

[6] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[7] The report is dated 7 April 2017 but the assessments upon which it was based were conducted on 3 April 2017 and 12 April 2017, the first being approximately three hours and the second an hour and a half to two hours. The inconsistency in the date of the report was not addressed in the evidence.

[8] [1988] HCA 14; (1988) 164 CLR 465, 476-7 ('Veen [No 2]').

[9] [2011] HCA 39; (2011) 244 CLR 120 ('Muldrock').

[10] See the discussion in Tran v The Queen [2012] VSCA 110; (2012) 35 VR 484, 488-91.

[11] See Arthars v The Queen [2013] VSCA 258; (2013) 39 VR 613, 618 [13] and cases cited therein.

[13] (1995) 84 A Crim R 67, 68.

[14] Muldrock [2011] HCA 39; (2011) 244 CLR 120, 139 [54] (citations omitted).

[15] R v Mills [1998] 4 VR 235.

[16] DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125.

[17] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628.

[18] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

[19] Diver v The Queen [2010] VSCA 254 [32] and cases cited therein.

[20] R v Tran and Tran [2006] VSCA 222 [27]-[28].