Booth v The Queen [2015] VSCA 51

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 Following a trial in the County Court, the applicant was convicted by a jury of one charge of criminal damage (charge 1); one charge of aggravated burglary (charge 2); one charge of common assault (charge 4); and one charge of kidnapping (charge 5).[1] He later pleaded guilty to a further charge of being a prohibited person in possession of a firearm.

2 On 3 April 2014, the applicant was sentenced to be imprisoned for 18 months on charge 1; six (6) years and six (6) months on charge 2; three (3) months on charge 4; five (5) years on charge 5; and three (3) months on the firearms charge. Orders for cumulation produced a total effective sentence of nine (9) years and three (3) months' imprisonment, upon which the judge fixed a non-parole period of seven (7) years.

3 Initially, the applicant sought leave to appeal against both conviction and sentence. A judge of this Court refused leave to appeal against both conviction and sentence on 21 October 2014.[2] Pursuant to s 315(2) of the Criminal Procedure Act 2009 ('CPA'), the applicant elected only to renew the application for leave to appeal against sentence. The Court indicated to the parties that it would consider the election and, if leave to appeal were granted, the substantive appeal. It gave the parties the opportunity to advance further written submissions.

4 It was not contended that the sentence is manifestly excessive. Rather, discrete error was alleged. Thus, the applicant relied on the following grounds:

1. The trial judge erred in -
   1. rejecting the evidence of Dr Lindsay Vowels as to the applicant's intellectual quotient (IQ) and accordingly not applying the principles of R v Verdins; and
   2. preferring the evidence of Mr Ian Joblin to that of Dr Lindsay Vowels.
2. The trial judge erred in -
   1. failing to obtain a Forensicare assessment of the applicant.

5 As will become apparent, although the two grounds are interrelated, it has only been necessary to consider the first of them.

6 For the reasons that follow, we would grant leave to appeal against sentence, allow the appeal and resentence the applicant in the manner later set out.

1. In his reasons refusing leave to appeal, the judge summarised the facts as follows:[3]

... In the early hours of the morning of 26 April 2011 the applicant had been at [Volt] nightclub in Werribee with Steven Kane. A man named Enzo Fornito was also at the club. Mr Fornito was the boyfriend of the complainant, Cassie Hunt. There was a verbal confrontation at the nightclub between Mr Fornito and the applicant in relation to Ms Hunt. There was an escalation in the argument in the club between Mr Fornito and his friends and the applicant and his friends and the two groups were asked to leave the club. A physical fight erupted outside the club between the two groups. During the fight outside the club, Mr Kane was knocked to the ground and the applicant assisted Mr Kane to leave. The applicant drove away from the club with Mr Kane and a third male. As the applicant left the nightclub around 3.10am, the vehicle he was driving sustained some damage in a single vehicle accident. At 3.30am, Ms Hunt and her mother, Karen Hunt, were asleep in their unit in Altona. The applicant and other men descended on the unit and from outside the premises, broke every window in the unit. That conduct constituted the charge of criminal damage [charge 1]. The car that had been driven by the applicant away from the nightclub had been parked in a street around the corner from the unit, close enough to walk to the Hunts' residence and then return to the car. A picket had been removed from the fence near where the car was parked and had been carried to the scene of the damage. The applicant's voice was recognised at the scene. An occupant of the unit saw the men return to the car and leave the vicinity. A portion of the bumper had fallen off in the area where the car had been parked. The men who had broken the windows of the unit said prior to leaving that they would be back.

At around the same time the next morning the applicant, accompanied by two other men, returned to the property in a different vehicle. On this occasion the complainant and her mother were sharing the same bed because they felt insecure. The windows of the property had not been repaired. The complainant and her mother awoke to find three masked men in their bedroom ordering them to get out of bed. That conduct constituted the charge of aggravated burglary [charge 2]. The applicant was holding a sawn-off shotgun. Ms Hunt was dragged out of the bedroom to the lounge by her hair. The applicant and the co-offenders sought to ascertain the whereabouts of the complainant's boyfriend, Mr Fornito. The complainant responded that she did not know. In the midst of this, her mother was physically assaulted by a co-offender. This conduct constituted the charge of common law assault [charge 4].

The complainant was then abducted at gunpoint. She was dragged out physically to the car and ordered into the boot. The complainant and her mother were terrified and stunned neighbours looked down on the disturbance from adjacent properties. One of the men were (sic.) seen to raise the gun and discharge it into the air out in the street. A fired wad of a shotgun cartridge was found in that location in the street. The car then left. Cassie remained locked in the boot of the car for several hours until her release at about 10.57am. The car had been parked outside the applicant's house from the early hours of the morning until the complainant was released. That conduct constitutes the charge of kidnapping [charge 5]. The complainant was seen walking away from the car in a dazed and emotional state, in her pyjamas; wet and dishevelled. The complainant described a number of occasions when the boot was opened during the kidnapping, on one occasion in order to provide the applicant with Mr Fornito's phone number. On another occasion she was bound with masking tape and on another she had a bucket of water thrown in at her.

8 On the plea, the applicant's counsel[4] laid particular reliance on the report (dated 26 November 2013) and the oral evidence of Dr Lindsay Vowels, a neuropsychologist. Counsel so relied in support of a Verdins[5] argument.

9 As will be seen, the sentencing judge rejected, out of hand, Dr Vowels' opinion that the applicant - (a) was a person suffering from intellectual disability at the milder end of the continuum; (b) had some probable additional falloff in cognitive efficiency and speed referable to acquired brain injury; and, (c) did not have a psychiatric disorder such as a psychosis, but was moderately depressed and anxious. His Honour also rejected Dr Vowels' sub-categorisation of some of the applicant's problems with cognitive efficiency and memory by reference to diagnoses of dysexecutive syndrome and amnesic syndrome.

10 Dr Vowels apparently was not asked by the applicant's solicitors to offer an opinion as to a possible causal connection between the applicant's disabilities as she found them to be and his offending, and she did not address that issue in her report. Nonetheless, if accepted, her conclusions would have been relevant at least to an assessment of the place of general deterrence in the sentencing synthesis, and increased burden of imprisonment.

11 The doctor's opinion was important to the applicant's plea because, once rejected, it left no room for the applicant to argue in this Court that the sentence imposed upon him was manifestly excessive. Indeed, having regard to the findings which the judge made, as we have mentioned, no such ground of appeal was raised.

12 In order to understand the controversy which arose, and the way in which the judge dealt with it, it is necessary to set out what transpired in some detail.

13 As set out above, the offending took place on the nights of 26 and 27 April 2011.

14 The applicant stood trial in the County Court on 29 July 2013. On 12 August, a jury found him guilty on all charges.

15 On 13 August 2013, a plea did not proceed because the applicant's side was not in possession of relevant (medical) reports.

16 The matter came on again before the trial judge on 11 October 2013. Senior Counsel for the applicant sought an adjournment. She informed his Honour that it had recently been discovered that the applicant had been involved in a serious road traffic accident in 2004, that material had been sought from the Royal Melbourne Hospital, and that legal aid had been sought so that the applicant could be subject to neuropsychological examination.

17 On that occasion, the prosecutor informed the judge that on 23 April 2007 the applicant had been sentenced for earlier offences by the late Judge Barnett; and that the reports of two psychologists had then been tendered on the applicant's behalf.

18 The plea hearing resumed on 17 December 2013. The prosecutor informed the judge that the Crown wished to adduce evidence from a psychologist, Mr Ian Joblin, whose report[6] had been provided to the prosecution. The Crown, indeed, had arranged for Mr Joblin to be in court so that he could listen to the viva voce evidence of Dr Vowels.

19 Before any evidence was adduced on that day, the judge informed counsel that an application had been made to the County Court Registry - we interpolate, by the Crown - to access the reports of the two psychologists which had been placed before Judge Barnett at the 2007 hearing. The judge told counsel that he had signed an order conferring a right upon the Crown to examine those reports. It became apparent that copies of the reports had been provided to both the Crown and the applicant's side. The judge stated that he had not read the reports.

20 Counsel for the applicant then informed the judge that the two reports - the authors of which were Ms Elizabeth Warren and Mr Bernard Healey - were not relied upon by the defence. His Honour's response was to say that they had been relied upon before another judge at another time (which was, so far as it went, perfectly true).

21 Dr Vowels then gave viva voce evidence. After she had been examined by counsel for the applicant, she was cross-examined by the prosecutor and then subjected to further questioning by the judge. We pause to note that both during her evidence-in-chief and during cross-examination the judge had intervened at times; and that, as far as we can see, his intervention in every instance was adverse to the opinions which she was proffering.

22 After Dr Vowels had completed her evidence, the report of Ms Warren, dated 25 May 2005, and the report of Mr Healey, dated 21 October 2006, were tendered into evidence by the Crown, over the objection of counsel for the applicant. In the course of the tender, the judge referred to Mr Healey as a 'respected psychologist'.

23 Then followed a most unusual development in what was already a most unusual plea. The applicant's counsel tendered Mr Joblin's two reports, and stated that they were relied upon with respect to a diagnosis of personality disorder, but that Mr Joblin's opinion that the applicant was a man of 'good intellect' was disputed.

24 Mr Joblin was then called by the prosecutor, and cross-examined by applicant's counsel.

25 There, the matter rested so far as evidence relevant to Verdins was concerned.

The witnesses: their qualifications and experience

26 Now it is necessary to consider in some detail the evidence of the four witnesses to whom we have referred. But before doing so, we should say something about their qualifications and experience.

27 Dr Vowels who was the only one of the four witnesses to whom we have referred who was a specialist neuropsychologist.[7]

28 Her curriculum vitae showed that she began work in her profession of psychology in 1978, and that she obtained a Doctorate of Philosophy in Neuropsychology from the University of Melbourne in 1986. She became a Member of the College of Neuropsychologists, within the Australian Psychological Society, in 1985; and a Fellow of that Society in 1998. For 24 years, she was a senior neuropsychologist employed by the Multiple Sclerosis Society. Between 2002 and 2007, she was employed by the Association for the Study of Brain Impairment. She had taught psychology and neuropsychology at La Trobe, Monash, Victoria and Deakin Universities over many years.

29 We mention these matters to make it clear that Dr Vowels' curriculum vitae revealed her to have high academic standing and a long history of professional clinical, rather than medico-legal, work.

30 Ms Warren described herself in her report as a 'consultant forensic psychologist'. Mr Healey's report described him as a 'clinical psychologist'. Mr Joblin's reports described him as a 'forensic psychologist'. Each of those three witnesses, by self-description in the case of Ms Warren and Mr Joblin, and because of the repeated participation by all three of them in court proceedings, was known by the judge - as questions which he asked and observations which he made revealed - to have been much involved in medico-legal practice for many years. That is not to denigrate either their objectivity or their capacity to provide useful psychological reports. But their areas of practice, not to be confused with the area of practice of a neuropsychologist, and their involvement in the forensic aspects of psychology,[8] particularly in the criminal law area, does much to explain, we consider, differences in approach which may be perceived between their reports and the report of Dr Vowels, and in their approach to forensic issues.

31 We turn to Dr Vowels' report and viva voce evidence. We have already stated the conclusions which she reached.

32 In the course of her viva voce evidence, the witness explained in considerable detail the tests which she performed, their respective purposes, and the applicant's particular performance in each instance.

33 Dr Vowels described the applicant as being polite, respectful and not an unwilling subject. On more than one occasion, she made the point that the applicant's own assessment of his capacities - for example, with respect to reading and memory - was that they were much better than testing showed them to be. He stated that his reading skills and memory were good, that he had performed well on tests, when his test results revealed the contrary. We pause to observe that, if the applicant was 'malingering' - a word used by both the prosecutor and the judge - his conduct was that of a man of more than usual cleverness. The malingerer might say that he could not read well, or had a poor memory, but testing might reveal the contrary. This man, however, said that he read well and had a good memory, whereas testing showed the contrary.

34 Dr Vowels was particularly affected by the applicant's slowness in performing tests. She pointed out that some of the tests which she asked him to perform had a timing element. Failure to complete a task within time, or performing it over a lengthy period, was relevant to assessment of the applicant's intellectual functioning. This was aside altogether from whether he ultimately got an answer right or wrong. Slowness in testing was not to be confused with slowness in giving an answer to a question about, for example, social relationships or work history.

35 We pause again to observe that, in our opinion, the judge appears to have misunderstood the witness's 'slowness' evidence. She was not saying that he engaged in ordinary conversation with great slowness.

36 On a number of occasions, Dr Vowels was asked whether the applicant could have 'faked' test results. Her response was to say, in general terms, that faking was not an impossibility, but that her professional assessment of the applicant's performance was that he was not faking results. She gave particular examples with respect to two of the tests which she had performed.

37 As will be seen, the judge made much of Dr Vowels' opinion that the applicant suffered from lifelong intellectual limitations. That was an opinion which Dr Vowels reached on the basis of her test results and the applicant's history of prior trauma stretching back to childhood, together with his account of schooling difficulties. As to his school performance, the applicant's account given to Ms Warren in 2005 was sharply different to the history which he gave to Dr Vowels. Specifically, the applicant told Ms Warren that he had performed well at school, which is not what he told Dr Vowels. Again, the applicant gave a history to Dr Vowels of having suffered head trauma as a child, which was not a history which he gave to either Ms Warren or Mr Healey. It appears that the history of childhood head injury was elicited by Dr Vowels in response to specific questioning. Whether that might explain the difference in histories was not a subject explored in evidence.

38 Against that background, we turn to Dr Vowels' evidence respecting the reports of Ms Warren and Mr Healey. The witness had not been provided with copies of the reports of those psychologists before she examined and reported. Before giving evidence, however, she had been provided with copies.

39 At present, it suffices to say that Ms Warren conducted certain psychological tests, and concluded that the applicant's overall intellectual function was in the upper level of high average, translating to an IQ of something between 112 and 116; whilst Mr Healey's assessment of the applicant's IQ, made 18 months later, revealed 'sound average capacity with a full scale IQ of 103'.

40 Dr Vowels gave evidence that, having read the reports, she thought to herself 'Is this the same man that I saw?'. But she identified circumstances which may have caused a deterioration in the applicant's intellectual functioning between 2005/6 and 2013 - drug and alcohol abuse, testicular cancer with chemotherapy and steroid treatment. She also pointed out that the tests performed by Ms Warren and Mr Healey showed apparent deterioration in the applicant's functioning between 2005 and 2006, and that Mr Healey had reported a relative deficiency in processing speed.

41 Dr Vowels was taken to Mr Joblin's opinion, expressed in his September 2013 report, that the applicant was suffering from a personality disorder. The witness said that she would not disagree with the diagnosis, but that she would not see it as the primary diagnosis. That is, the cognitive difficulties which were revealed by her testing could manifest themselves by behaviour susceptible to description as personality disorder.

42 In cross-examination, Dr Vowels accepted that there was no head trauma after 2006 that would explain a significant deterioration in IQ between then and 2013.

43 With respect to possible deterioration over that period of years by reason of abuse of alcohol and cannabis, the witness said that it did seem 'a big gap' and that it was hard to explain, but that she still believed in the validity of her test results. She said also that she had not fully considered the impact of chemotherapy and steroid treatment.

44 The prosecutor asked this question and obtained this response:

You're not able to say, are you, that whatever intellectual or psychological deficits Mr Booth has, you're not able to say those things had any impact upon Mr Booth's decision to engage in the offending that's before the court; you're not able to give any opinion about that?---I'm not able to say that, no. The referral was for assessment, which is what I've concentrated on.

45 That answer bears upon our earlier observation that Dr Vowels' focus was essentially upon clinical assessment of the applicant, not Verdins issues.

46 Following cross-examination, the judge questioned the witness at some length. She agreed that 'to some extent' she was dependent upon the history given by the applicant, and 'to some extent' upon his putting in a genuine effort to perform the tests. The words 'to some extent' were contained in the judge's questions.

47 There was then this interchange between the judge and the witness:

Quite aside from the tests, the person that you observed on 26 November, you would never have said to that person that he appears to be a man of good intellect, would you, surely?---Ah, he was certainly of normal appearance.

I'm not talking about his physical appearance?---As a neuropsychologist, I'm not into assessing intellect by looking at people. I like to understand a bit more about them.

48 The witness's answer, as we apprehend it, was not lightly given. It served to underline the difference between the applicant's superficial presentation and his performance on neuropsychological testing.

49 The judge pressed the witness with respect to her conclusion that the applicant suffered from lifelong intellectual disability. His questioning culminated in the following:

The conclusion, if it is a conclusion, in your report of a life-long intellectual disability, and that is the way I read the report that you've provided, is totally inconsistent with the testing conducted in 2004 and 2005, isn't it?---I would certainly agree with you there, and I cannot account for such a change over time, and also the qualitative aspects of my interpretation, which made me think that his very poor cognitive performance was likely to be longstanding, rather than brand new. No, I have no explanation for that.

50 Pausing for a moment, the judge was well entitled to conclude that the witness no longer adhered to her conclusion, made without knowing the results of tests performed by Ms Warren and Mr Healey in 2005 and 2006, that the applicant suffered from lifelong intellectual disability. But her testing was conducted in 2013, and the results spoke of the situation as at that time. Extrapolation backwards, depending upon the history which the witness was given, was not at all essential to her conclusion as to the applicant's condition at time of testing.

51 We should add this about the judge's questioning of Dr Vowels. Even before she was cross-examined by the prosecutor, his Honour asked these questions, to which there were the following responses:

You've been made aware of the reports and the testing conducted by Mr Healey and Ms Warren?---Yes, I have.

Do you know those people or not?---I don't know them personally but I know their reputation to be good, yes.

They are relied upon regularly to come before the courts and to place before the court the details of their testing and their opinions. I think you described it as, a moment ago in your evidence, it was as though they were speaking to a different person, in terms of those results?---Yes, it certainly is. They were speaking of a person seven years previously who's undergone quite a few things in the meantime.

52 As it seems to us, his Honour's questions were designed to do no more than establish, if that were possible from the witness's answers, the credit of Ms Warren and Mr Healey.

Ms Warren's and Mr Healey's reports and viva voce evidence

53 We turn to the reports of Ms Warren and Mr Healey, and to their viva voce evidence. We begin with Ms Warren.

54 The applicant reported to her that, despite suffering major accidents on two occasions, he regarded himself as in reasonably good health and did not consider that he was severely compromised in his daily activities.

55 The witness assessed the applicant's current intellectual testing using the Wechsler Adult Intelligence Scale III. Testing showed him to be functioning within the 'upper level of the "high average" with an IQ score that placed him at the 86th percentile'. Ms Warren considered that the score was an underestimate of his inherent and potential ability. The higher scores were obtained in the area of performance intelligence. His verbal intelligence was also sound. The witness then reported as follows:

Given the above results his complaints of slowness and lack of acuity in thinking is interesting. He stated he feels slowed and less competent cognitively than he was before the accident '... before the accident I was really sharp'. He did actually appear slow in certain responses, at times his speech slowed and was halting or slightly indistinct, and physical impressions were of some vulnerability as certain areas around his eye and face appeared reddened, not fully healed, and somewhat fragile.

Specific neuropsychological testing might ascertain specific defects. But, based upon current results, and observation of his functioning there are no cognitive deficits that would impair his ability to conduct his daily affairs, further education should he choose, or a wide range of vocations.

56 Ms Warren opined that the applicant's lengthy, though intermittent, pattern of drug use warranted a diagnosis of substance dependence with physiological dependence. She considered that he was suffering from moderate anxiety and mild depressive symptoms.

... as though he is slowly recovering and this is consistent with many forms of minimal brain dysfunction consequent to head injury where recovery can continue slowly for years.

However, even if he is relatively underperforming intellectually he is still of high intellectual capacity.

58 In viva voce evidence, Ms Warren stated that neuropsychological testing 'could certainly make findings that I couldn't and didn't'.

59 The witness had not seen either the report of Mr Healey or the report of Dr Vowels. She agreed that the IQ assessment made by Dr Vowels was significantly less than her assessment and even significantly less than Mr Healey's assessment. She was then asked this question and gave this answer:

Dr Vowels conducted of course a number of other neuropsychological tests but I'm going to put to you or suggest to you that intervening events such as traumas to the head, such as ongoing sustained and serious substance abuse and certain treatments such as treatments for cancer, chemotherapy, steroids and things of that nature, on an already compromised brain, and I think you agree in your report that he had a compromised brain because of the brain injury that he had sustained during the accident?---I thought there could be some degree of underperformance consequent to that.

Yes, so on an already compromised brain do you agree that any one or a combination of those factors could be an explanation for a diminishing in his overall IQ?---Yes, it's certainly possible.

60 At the same time, Ms Warren stated that it was virtually impossible that the applicant had had a lifelong intellectual incapacity or disability. And in answer to the judge's question that, 'You thought there were no cognitive deficits that would impair his ability to conduct his daily affairs?', the witness agreed.

61 We go to Mr Healey's report and viva voce evidence. We first note that Mr Healey had available a report from the Royal Melbourne Hospital referable to the road traffic accident in which the applicant was involved in 2004. It referred to -

(1) a comminuted compound fracture of the left frontal bone and bruising of the right medial temporal pole and intra-cerebral haemorrhage;

(2) damage to the left orbit requiring reconstruction;

(3) damage to the posteromedial aspect of the left lower arm in which a plate and screws were inserted to anchor bone;

62 The hospital report to which Mr Healey had reference thus showed, inter alia, that the applicant suffered substantial head injury in the 2004 accident.

63 Mr Healey reported that, using the Wechsler Adult Intelligence Scale III, testing revealed sound average capacity with a full scale IQ of 103, placing the applicant at the 58th percentile. Verbal IQ was 98, non-verbal performance (IQ) above average at 110, verbal comprehension index 93, perceptual organisation index 97, working memory 104, and processing speed index 88. Powers of delayed recall were reasonably sound. The auditory verbal learning test produced generally normal results.

64 Mr Healey concluded that on the basis of those tests -

There was no major test evidence of cerebral impairment as a result of the head injury sustained in the accident of August 2004. Personality testing was indicative of anxiety, a hypomanic trend, and a sociopathic trend.

65 Mr Healey recommended to the applicant's legal advisers that the applicant should undergo further neurological review. No such review was undertaken at that time.

66 In viva voce evidence, Mr Healey said that it could not be argued on the basis of his findings that the applicant had longstanding intellectual disability. On the other hand, he was asked these questions and gave these answers:

Can I ask you this. You heard the question that I asked of Ms Warren a moment ago, which was that either one or a combination of intervening events?---Yes.

Such as those that I have already described, that is trauma?---Yes.

Physical trauma?---Yes.

Prolonged and ongoing serious substance abuse - - -?---Yes.

Alcohol and drugs, and - yes - treatment for such things as cancer, so chemotherapy and steroid treatment?---I didn't know where the cancer was. I hope it wasn't brain cancer or cerebral cancer.

No, no, no, it was testicular cancer?---Okay, yeah.

It was subsequent to your assessment in any event, it was well after your assessment?---Yes. That has a habit of spreading also, testicular cancer.

Yes, yes. That those matters either individually or alone could contribute to a diminishing in a person's IQ?---Most definitely. I saw him back in 2006. I mean in a sense that report is relevant up to a point, but what has happened to him subsequently would have an impact upon subsequent tests which would be administered, indeed brain functioning which could deteriorate significantly over time. I haven't had a chance to retest him again and therefore I don't know, but I rely upon the findings of - which were already produced.

67 We should refer also to these questions and answers:

In your opinion you say on the last page of your report, 'In view of all his circumstances, it was recommended to his legal adviser that John should undergo a further neurological review'?---Yes, that's true.

When you say neurological review, you're referring to neuropsychological?

---Well that is implied, but certainly the neurologist to examine - - -

A neurologist - - -?---And then the neurologist can refer either back to me or to the neuropsychologist for further assessment, but there may have been some subtle high level cerebral changes even then that may not have been quite detected by the testing in 2006, but it's possible that they were there. You've got a substrate, as it were, of brain trauma which doesn't necessarily have to manifest itself in gross disorder. But given what you've said over time - I'm not necessarily supporting anyone here, but given what you've said over time with that trauma which had been in place earlier, it's not surprising that deterioration could occur. I can't comment on the extent of it, I don't know, but it's quite possible that it did occur, yes.

68 As will be seen, the judge relied upon the reports and evidence of Ms Warren and Mr Healey essentially to reject the evidence of Dr Vowels that the applicant had a lifelong intellectual disability. His Honour also appears to have accepted their evidence that it was possible for the applicant's intellectual functioning to have deteriorated from 2005/2006 to the level determined by Dr Vowels' testing in November 2013. That, as the judge appears to have to perceived it, made the contrast between the reports and evidence of Dr Vowels on the one hand, and Mr Joblin on the other, of critical importance.

70 Mr Joblin's first report, dated 4 February 2010, was prepared in anticipation of the applicant's appearance at court with respect to offences committed in November 2008 and July 2009. The following are features of the report.

71 First, with the exception of documentation referable to the applicant's previous offending history, and a medical report relating to the applicant's treatment for testicular cancer, Mr Joblin's opinion was based upon acceptance of history given to him by the applicant, and such observations as he made.

73 Third, Mr Joblin stated, referable to the 2004 head injury, that -

I have not noted any neurological assessment, but at the time of my interview with him there did not seem to be psychological symptoms consistent with brain damage.

74 Fourth, Mr Joblin recorded that the applicant presented well, was polite and cooperative, was able to discuss his history in appropriate terms, acknowledged that he was unstable, and indicated that he used excessive amounts of drugs and was associating with others of a similar persuasion.

75 Fifth, Mr Joblin opined that the diagnosis and treatment of the applicant's testicular cancer had produced a very substantial change in the applicant. He stated that:

Had Mr Booth continued in the manner represented by his previous offences, the diagnosis of an antisocial personality disorder would have been appropriate. However, that is seriously contradicted now by his current situation. This seems to have been predicated on the strong psychological impact the diagnosis of testicular cancer had on him. Mr Booth indicated, and I would agree, that he has had a life of considerable waste but that has now ended.

It would be naïve to consider that his problems are over but for the first time in his life Mr Booth is making efforts to stabilise away from the antisocial environment of his past. To return him to custody at this point could predictably result in some difficulties. While Mr Booth is still fragile, in my opinion a continuation of the status quo may well form the basis for an optimistic prognosis. One notes that for persons of his age of not being able to stabilise appropriately, the prognosis cannot be good. However, Mr Booth is currently responding to stability.

76 This was a report of a kind commonly seen on criminal pleas. It may be summarised this way: there was hope for the applicant's future, which should not be snuffed out by a sentence of imprisonment.

77 We refer next to Mr Joblin's report dated 2 September 2013. The following matters should be noted.

78 First, the witness interviewed the applicant, who was then in prison, by video-link, not in person.

79 Second, as on the first occasion, the interview was history-based.

80 Third, on this occasion, as on the first occasion, the witness conducted no testing of the applicant.

81 Fourth, the objective fact of the applicant's re-offending, and the history which he gave of relapse into abuse of alcohol and drugs, stood in contradiction to such optimism as Mr Joblin had expressed in his first report.

82 Fifth, on this occasion, Mr Joblin stated that the applicant 'would attract a diagnosis of personality disorder'.

83 Sixth, Mr Joblin opined that the applicant 'is a man of good intellect'.

It is unfortunate that Mr Booth has had the history he has as he presented with intelligence, insight and potential but that simply has not been available.

85 It is not perspicuous just what Mr Joblin meant by the last-noted statement, but he certainly affirmed the applicant's 'intelligence, insight and potential'.

86 As we earlier noted, Mr Joblin sat in court during the evidence given by Dr Vowels. When he came to give evidence, he expanded upon his opinion that the applicant was a man of good intellect. He said this:

It was quite apparent in discussion with Mr Booth, Your Honour, that he was able to understand exactly what we were talking about. There was no suggestion of any type of demonstration of disability at all, I felt, at the time I interviewed him. Furthermore, I'd indicate, Your Honour, had I felt there was any type of disability, I would have referred him off to appropriate persons for investigation. As it was, that's exactly what happened, but the other issue would have been, Your Honour, had I considered that there might have been some disability, we've raised the issue of whether or not he was capable of understanding what was going on in this court, and the issue of fitness. And it certainly wasn't an issue, in my opinion.

87 The witness further stated that he could not agree with Dr Vowels' conclusions in relation to her determination of the applicant's IQ. Her assessment of an IQ of 57 was 'a very low figure' and 'obviously in the disabled category, and certainly it would have been quite apparent, even in his speech and his history'.

88 The witness further stated that he did not consider the applicant to be slow. He opined also that the applicant 'has a certain diagnosis of a personality disorder and the symptoms of that are fairly negative'.

89 The judge asked these questions and obtained these answers:

You don't think he has an intellectual disability at all?---No, no, Your Honour.

Much less a life-long one?---I can't get hold of that at all, Your Honour.

90 In cross-examination, the witness said that he did not undertake any formal cognitive or intellectual testing of the applicant because he thought it was not necessary.

91 Asked what opinion he had as to the applicant's IQ, the witness answered:

I would indicate, Your Honour, from an educative guess, that it perhaps would not be in the disabled category. In all probabilities, it's average or low average. So the figure would be around 90 or the early 90s.

92 In his sentencing remarks, the judge dealt at length with the question of the applicant's 'intellectual or psychological state both at the time of offending and now'. It is not necessary to refer to all parts of his Honour's discussion of the matter, but simply to note the following.

93 First, the judge stated, with respect to the evidence of Dr Vowels, that:

The witness's opinions are only as good as the information and materials upon which they are based. You [that is, the applicant] are firstly, in my judgment, a most unreliable historian ... Dr Vowels herself said that you were quite unreliable and told her some things not mentioned to others and that there were other things mentioned to others not mentioned to her.[9]

battery of tests and the results from those tests [are] dependent upon you making a genuine or uncompromised effort to give of your best.[10]

[Dr Vowels] described an excessive or incredible slowness in your presentation. She described her impression of you being someone with limited intelligence and very slow in responding. This was a totally different impression to that encountered by Mr Joblin in 2010 and in September 2013.[11]

96 Fourth, the judge stated that Dr Vowels' report expressed what he described as 'some quite startling conclusions' as to the applicant's lack of cognition and competence. Further, her view that he probably had a lifelong intellectual disability or limitation could not sit with the results of testing conducted in 2005 and 2006, and it could not 'sit with the very experienced Mr Joblin's account of your being a man of good intellect'.[12]

It seems to me that Dr Vowels is on the outer in terms of her opinion and test results. She cannot really sensibly explain away the earlier test results. Those tests were conducted. They were the results. And they are, of course, totally inconsistent with your having any lifelong disability and that must be so. The results in 2005 and 2006 show beyond any doubt that there is no lifelong disability or limitation and still a reasonable, if not a high level of function even well after the car accident in 2004.[13]

It is true that there can be deterioration in functioning for a number of reasons as Ms Warren and Mr Healey made claim in their evidence before me. That was Dr Vowels' explanation. It can be produced by the cumulative effect of head trauma, of substance abuse of steroids, even of chemotherapy drugs ... Clearly though [Ms Warren and Mr Healey] each say in their reports, and said to me that you have had no lifelong intellectual disability or limitation as you were not disabled when they saw you. Far from it.[14]

The problem is though that Mr Joblin saw you on the two later dates, one of those very proximate to the time when Dr Vowels saw you, and one admittedly three years before. It is true that he did not conduct the battery of tests that Dr Vowels did, and so there are limits to his examination and opinion. However, to pick up on Mr Joblin when challenged in that regard by your counsel, he said that he did not need to conduct any testing. He said there was clearly no deficit and you were functioning at a good level in September 2013. Tests were not necessary or indicated he said.[15]

100 The judge noted that, as was the case, Mr Joblin had rejected Dr Vowels' opinions.

Mr Joblin has been assessing people for over 35 years. The suggestion that he would not pick up any signs of a deficit, at the level suggested by Dr Vowels' testing, is not one that I accept for one moment. Her view as to long term limitations or deficits, that is seemingly an IQ of 70 or less as a child, is necessary wrong (sic.) as is plain now even to her. I have resisted the urge to descend further into the transcript. If others wish to they may. I will not forget in a hurry the demeanour of Mr Joblin as he gave his evidence. It clearly gave him no pleasure to say what he was saying in relation either to you or to Dr Vowels. He knew that it did not assist you but he could not and he did not accept the conclusions that Dr Vowels reached as to the presence of an intellectual disability or deficit, it being longstanding or present at all, and the IQ score was impossible given what he saw on two occasions three years apart. He was obliged to state his view and did. He has 36 years' experience in his field. I accept his evidence.

Ultimately I am not satisfied that you have any of the conditions referred to in the report of Dr Vowels. I am sorry to do it in such a global manner but what it amounts to is this. I am not satisfied of the validity of the results of any of the tests conducted, including those to measure anxiety. I am not satisfied to the required degree of any of her opinions. I am not satisfied that there is any intellectual disability or intellectual deficits or lack of cognition sufficient to attract any of the principles from the case of Verdins. Nor am I satisfied to the requisite degree of the existence of any depression or anxiety that attracts those principles. Nor any dysexecutive syndrome or amnesic syndrome, as referred to. The opinions are only as good as your history and your efforts on the testing.

I am firstly satisfied that you have not provided either a complete or accurate history to Dr Vowels. Nor am I left in any doubt at all that you have failed to give of your best in the testing. Your counsel is seeking to persuade me on the civil standard that you have these various conditions referred to in the report and evidence of Dr Vowels, and that they have a role to play in sentencing in reducing your moral culpability and reducing, if not eliminating, the principle of general deterrence and moderating the principle of specific deterrence. Further, she argued, that the conditions will increase your custodial burden.

I am not satisfied on the balance of probabilities that any of the conditions exist at all. Let me be more explicit as I feel I must. I am not only not satisfied that you have any intellectual disability or deficits, I am actually positively satisfied that you do not have the disability referred to by Dr Vowels, or any of the raft of other conditions described by her. I am satisfied that you are in fact of decent intellect. The testing and conference with Dr Vowels has seriously miscarried. You have not given your best efforts in the testing, of that I have no doubt at all. I am satisfied of it beyond reasonable doubt.

Dr Vowels may believe that you did not deliberately give a substandard response, though says there is no way of disproving malingering. However, she also opines that you have a longstanding intellectual limitation and we know that that is simply impossible on the materials. A pretty decent starting point is to examine the history you gave. She takes significant changes of history as somehow supporting the existence of a deficit, in the same way she concludes from the fact that you have continued to offend over the years, that that too is a sign of an intellectual disability. She founds an opinion as to long standing intellectual limitations upon your shifting account of your childhood difficulties at school. How does she explain the IQ in 2005 and 2006, and the assessment made by one of the State's most experienced forensic psychologists in 2010 and 2013? She does not. Nor for that matter does she come to grips, in my judgment, with your actual actions in this case, actions in my view totally inconsistent with a man of the cognitive limitations suggested. But of course, I do accept that these events took place in 2011. I do not accept or act on the evidence or the report of Dr Vowels. I do not accept that Verdins, or the principles from that case, have any application at all in your case. I do not accept on the balance of probabilities the existence of any of the conditions referred to.[16]

102 The applicant carried the burden of proof of establishing that he suffered from a condition or conditions which had the potential to call Verdins principles into operation. The judge was not simply not persuaded that the applicant had satisfied that onus, but expressed himself as positively satisfied that he did not have the intellectual disability referred to by Dr Vowels, or any of the other conditions described by her. In seeking to persuade this Court that the judge's fact-finding erred, the applicant carries the particular difficulty of a finding not simply that he failed to persuade the judge below of a matter upon which he carried the burden of proof, but that the judge went so far as to positively determine the contrary. Even so, in our opinion, the applicant has demonstrated that something went seriously wrong in the judge's fact finding. The following considerations - not in any particular order of importance - are in point.

103 First, it was, of course, undesirable that Dr Vowels was not provided with the reports of Ms Warren and Mr Healey prior to the time at which she examined the applicant. Those reports undermined Dr Vowels' opinion that the applicant probably had a lifelong intellectual disability. She acknowledged as much. But, as we have already observed, what mattered was the validity of the testing which Dr Vowels conducted in late 2013 - testing of a kind which had not been conducted by any of the other practitioners who were called to give evidence. The judge's observation[17] that, 'Her view as to long term limitations or deficits, that is seemingly an IQ of 70 or less as a child, is necessarily wrong as is plain now even to her' - leaving aside the language in which it was expressed[18] - carried things not far at all.

104 Second, the judge's observation that, 'Dr Vowels may believe that you did not deliberately give a substandard response, though says there is no way of disproving malingering' - if it implied that Dr Vowels did not hold that belief - was without any warrant.

105 Third, as his Honour saw it, the contest ultimately resolved itself into a conflict in the evidence of Dr Vowels and Mr Joblin. The judge evidently preferred the evidence of Mr Joblin, who had been assessing people for over 35 years, to the evidence of Dr Vowels, who had been in practice for approximately the same period of time, and who had been in specialist neuropsychological practice for over 25 years. Moreover, what his Honour did was to prefer the evidence of Mr Joblin, who had not subjected the applicant to any testing on either of the occasions that he interviewed him, and whose second interview was conducted by video-link, to the evidence of Dr Vowels, whose extensive and focused testing had been conducted face to face. Further, his Honour preferred the evidence of Mr Joblin, which was history-based, supplemented by observation, to the evidence of Dr Vowels, whose opinion was only in part history-based and which was substantially dependent upon test results. Further again, the judge preferred the evidence of Mr Joblin, although his Honour misunderstood, as it appears to us, the 'slowness' to which Dr Vowels referred. As we have earlier pointed out, her reference to slowness was with respect to the applicant's performance at testing. In the same connection, Dr Vowels had made it clear that the applicant presented with a confidence in his abilities to which the testing gave the lie. To say that the applicant presented well rather missed the point. We refer to the interchange between his Honour and Dr Vowels[19] above. Further, the judge preferred the evidence of Mr Joblin despite the fact that the witness's initial conclusion, expressed in his 2010 report, had quite quickly proved to be erroneous. Finally, the evidence of Mr Joblin referred to at [91] above was scarcely compatible with his characterisation of the applicant as a man of 'good intellect'.

106 Stripping aside particular language which the judge used, his Honour's reasons for preferring the evidence of Mr Joblin to that of Dr Vowels imply that the applicant selected Dr Vowels as the person over whose eyes he would pull the wool, although she was the only one of the four practitioners who subjected him to an extensive regime of testing. In that connection, we note that the tests performed by Ms Warren and Mr Healey in 2005 and 2006 were much less extensive than those performed by Dr Vowels, and that not all of them were concerned with cognitive function.

107 Fourth, the judge's statement that, 'The opinions are only as good as your history and your efforts on the testing', misstated the effect of the questions and answers to which we have referred.[20] His Honour built upon that statement by finding (as was not in doubt) that the applicant was an unreliable historian, and that 'beyond reasonable doubt' he had not given of his best when tested by Dr Vowels.

108 The finding that the applicant was not a reliable historian was relevant, of course, to the assessment made by each of the four witnesses. Logic dictates that it was of greatest relevance in the case of the only practitioner - Mr Joblin - who did not subject the applicant to any testing.

109 The finding that the applicant had not given of his best when tested by Dr Vowels - made to the criminal standard, which was unnecessary, but which was perhaps a matter of emphasis - peremptorily dismissed Dr Vowels' evidence in which she explained why she considered the test results reliable. If that had been the only evidence bearing upon reliability, such a finding would have been understandable. But, as appears below, it was not the only evidence which suggested reliability; and, the judge seems not to have apprehended that fact.

110 We have thus far assumed that the judge was correct in stating his view that Dr Vowels was 'on the outer in terms of her opinion and test results'. But, with respect, for more than one reason that was not so. First, the Wechsler Adult Intelligence Test performed by Ms Warren did not use the timed tests methodology used by Dr Vowels. Second, Ms Warren's observations that the applicant complained about slowness and lack of acuity in thinking, that he stated he felt slowed and less competent cognitively than he was before the 2004 accident, and her observation that 'he did actually appear slow in certain responses, at times his speech slowed and was halting or slightly indistinct' was compatible with what Dr Vowels' specific testing revealed in 2013. Third, Mr Healey's testing in 2006 revealed a slowness in processing speed which Dr Vowels described as significant, and which was again compatible with the slowness in response which her testing revealed.

111 It is apparent, in our opinion, that Dr Vowels' testing documented a slowness in response to testing - it bore upon her core conclusions - which fitted in with observations made by the applicant to Ms Warren in 2005 and with findings made by Mr Healey in 2006 on less rigorous testing. So understood, it was Mr Joblin, who had not conducted any testing at all, who was the odd man out.

112 In all the circumstances which we have described, no matter that Mr Joblin was 'a respected consultant forensic psychologist', notwithstanding that he had been 'assessing people for over 35 years', and notwithstanding that he did not see any need for testing, intellectual analysis of the evidence adduced on the plea could not support his Honour's preference for the opinion of Mr Joblin to that of Dr Vowels. The burden of the evidence of Ms Warren and Mr Healey was that her test results were explicable. The witness herself described in considerable detail the difficulties of successfully faking test results. Mr Joblin's long experience with the criminal justice system could not, on the totality of the evidence adduced in this particular case, logically prevail.

113 For these reasons, the judge's preference for the evidence of Mr Joblin made use of a misapprehension as to the evidence given by Dr Vowels, and was against the evidence generally. The first ground of appeal has been made out. There is 'error in the sentence first imposed', so that, subject to being satisfied that 'a different sentence should be imposed', we must allow the appeal.[21]

114 Following the hearing, the Court received further written submissions from the applicant's and respondent's counsel bearing on a resentencing exercise.[22]

115 The applicant's counsel advanced the following matters as relevant to sentence. First, it was submitted that Dr Vowels' evidence, and her findings of the diminishment of the applicant's cognitive capacity - principally as a result of an acquired brain injury - should be seen as reducing the applicant's moral culpability and the need for general deterrence. Second, counsel relied on the applicant's plea of guilty to the firearm possession charge. Third, counsel relied on the applicant's long standing drug and alcohol addiction, and his efforts in custody to deal with those difficulties. Fourth, it was submitted that the applicant had a strong relationship with his children and his ex-partner. Fifth, the applicant had the continuing support from his mother. Finally, it was contended that the applicant's custodial burden would be increased because of his condition.

116 The respondent's counsel submitted that the evidence of Dr Vowels did not enliven Verdins, so as to reduce the applicant's moral culpability; and that, 'any reduction under the Verdins principles would be limited to some moderation to general deterrence ... and maybe some moderation relating to the burden of prospective imprisonment'. It was submitted that the sentence originally imposed was 'entirely appropriate', having regard to the seriousness of the offending and the applicant's extensive criminal history. There was not much, it was submitted, by way of mitigation - certainly no plea of guilty (save for the firearms charge) - and no basis upon which to reduce the need for specific deterrence. Protection of the community was important, and the prospects of rehabilitation 'uncertain'.

117 We agree with the respondent's submission that the evidence of Dr Vowels did not permit any meaningful conclusions to be drawn concerning the applicant's moral culpability at the time of the offending. In our view, however, properly understood, Dr Vowel's conclusions bore on the prominence of general deterrence in the sentencing synthesis and the increased burden of imprisonment on the applicant. So much is recognised in the respondent's submissions. Properly synthesised, those considerations ought to have led to a sentence less severe than that imposed by the sentencing judge.

118 It cannot be gainsaid that the offending - in particular, the aggravated burglary and kidnapping - objectively was very serious. Dr Vowels had, however, assessed the applicant's IQ at 57, and found him to be a person suffering from intellectual disability at the milder level of the continuum. Even if, as it was submitted by the respondent, acceptance generally of Dr Vowels' evidence did not mandate a conclusion that the applicant's disability was as great as that asserted, the burden of Dr Vowels' findings, in our view, bears directly on the issue of the applicant's suitability as a vehicle for general deterrence. Although general deterrence remains important, in light of the applicant's intellectual disability it must, in the exercise of the sentencing discretion, be sensibly moderated. Moreover, it might be expected that the applicant's disability will have an impact on the burden of imprisonment. Those factors need to be reflected in the sentence to be imposed.

119 In the result, we would grant leave to appeal against sentence, allow the appeal and sentence the appellant to be imprisoned for 12 months on charge 1; for six (6) years on charge 2; for three (3) months on charge 4; for four (4) years on charge 5; and to three (3) months on the firearms charge. The sentence on charge 2 is the base sentence. We would order that six (6) months of the sentence on charge 1, two (2) months of the sentence on charge 4, 18 months of the sentence on charge 5, and one (1) month of the sentence on the firearms charge, be served cumulatively with the sentence on charge 2 and with each other, thus producing a total effective sentence of eight (8) years and three (3) months' imprisonment. We would fix the period of six (6) years and three (3) months before which the appellant is not to be considered eligible for release on parole. Our overall intention is reflected in the following table:

120 As we have mentioned, a judge of this Court refused leave to appeal against sentence. The judge said:[23]

The finding made by the sentencing judge as to whether or not any of the principles in Verdins were enlivened was a finding of fact. It was for the sentencing judge to determine whether he was satisfied on the balance of probabilities that the applicant had an intellectual impairment and, if so, what effect it should have on the sentence. For the reasons fully explained by his Honour in his sentencing remarks, it was open to the sentencing judge to conclude that the applicant did not suffer from any relevant intellectual deficit or mental disorder. ...

121 We mention the judge's findings when refusing leave for this reason. Recent decisions of this Court in Booysen,[24] Ayol[25] and Mifsud,[26] hold that, where an applicant elects to renew an application for leave to appeal, in circumstances in which a single judge of this Court has given detailed reasons for refusal, at a practical level the applicant needs to demonstrate that error would be perpetuated if the judge's refusal to grant leave was to be repeated by the Court hearing the renewal application. Counsel for the applicant filed detailed written submissions contending that this approach was unsound. It was submitted that s 315(2) of the CPA provides a right to the applicant to have his leave application proceed to the Court of Appeal by way of a de novo hearing. Counsel argued that, if that characterisation of the renewed leave application is accepted as correct, then there is no requirement to give any weight to the decision of the judge refusing leave, and thus to determine whether there was error in the decision to refuse leave.

122 It must be understood, however, that in each of the cases referred to, the Court was at pains to make clear that a renewal of an application for leave is by way of rehearing, and is not an appeal from the decision of the judge refusing leave to appeal. Demonstration of error is not the sine qua non of a successful renewal. But where no flaw or error can be discerned in the reasons of the judge refusing leave, those reasons will be accorded some weight.

123 In the present case, the judge refused leave 'on the papers'. He did not have the benefit of full argument, which, as it transpired, revealed the insidious nature of the error lurking in the process. We think it very probable that, with the benefit of full argument, the judge would have reached a different conclusion on the question of leave.

[1] The jury acquitted him of conduct endangering life (charge 2).

[2] Booth v The Queen [2014] VSCA 258.

[4] Not counsel who appeared in this Court.

[5] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[6] Or perhaps two reports, one dated 4 February 2010, and the other, 2 September 2013.

[7] The Shorter Oxford English Dictionary defines neuropsychology as follows: 'The branch of science that deals with the relationship between behaviour and the mind on the one hand, and the nervous system, esp. the brain, on the other; neurological psychology.'

[8] Contrasting with the definition of neuropsychology, the Shorter Oxford English Dictionary defines psychology as follows: 'i. the science of the nature, functioning, and development of the human mind (formally, of the soul), including the faculties of reason, emotion, perception, communication, etc; the branch of science that deals with the (human or animal) mind as an entity and in its relationship to the body and to the environmental or social context, based on observation of the behaviour of individuals or groups of individuals in particular (ordinary or experimentally controlled) circumstances'.

[16] Ibid [50]-[54] (emphasis added).

[18] Approximating some of the language considered (and deprecated) in the bias case of Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 573 (Brennan, Deane and Gaudron JJ).

[21] Criminal Procedure Act 2009, s 281. See also ss 278 and 280.

[22] See above, [3].

[23] Booth v The Queen [2014] VSCA 258, [17].

[24] Booysen v The Queen [2014] VSCA 150, [9].

[25] Ayol v The Queen [2014] VSCA 151, [14].

[26] Mifsud v The Queen [2014] VSCA 160, [16].