Caldwell & Caldwell v The Queen [2014] VSCA 274

1 On 12 March 2014, following a 30 day trial in the County Court, the applicants Kelly Edward Caldwell and Jason William Caldwell were found guilty of a number of offences alleged to have been committed in 2009 and 2010. Kelly Caldwell was found guilty of 39 offences (three charges of criminal damage, eight charges of theft, 21 charges of obtaining property by deception, one charge of arson, five charges of burglary and one charge of attempted theft). Jason Caldwell was found guilty of 36 offences (two charges of criminal damage, six charges of theft, 21 charges of obtaining property by deception, one charge of arson, five charges of burglary and one charge of attempted theft).

2 Following a plea on 19 March 2014, Kelly Caldwell was sentenced on 20 March 2014 as follows:

Criminal damage [Crimes Act 1958 (Vic) s 197(1)]

10 years [Crimes Act 1958 (Vic) s 197(1)]

Theft [Crimes Act 1958 (Vic) s 74(1)]

10 years [Crimes Act 1958 (Vic) s 74(1)]

Arson [Crimes Act 1958 (Vic) s 197(6)]

15 years [Crimes Act 1958 (Vic) s 197(7)]

Obtain property by deception [Crimes Act 1958 (Vic) s 81(1)]

10 years [Crimes Act 1958 (Vic) s 81(1)]

Burglary [Crimes Act 1958 (Vic) s 76(1)]

10 years [Crimes Act 1958 (Vic) s 76(3)]

Attempted Theft [Crimes Act 1958 (Vic) s 321M]

5 years [Crimes Act 1958 (Vic) s321P]

3 During the course of Kelly Caldwell's plea hearing, the judge and counsel proceeded on the basis that Kelly Caldwell fell to be sentenced on charge 8 as a serious arson offender within the meaning of s 6B of the Sentencing Act 1991. This was a mistake because Kelly Caldwell had no prior convictions for a relevant offence in relation to arson. It is regrettable that neither the trial prosecutor[1] nor Kelly Caldwell's counsel corrected the judge's misapprehension because, in the result, the judge sentenced Kelly Caldwell in respect of charge 8 as a serious arson offender.

4 The plea hearing in respect of Jason Caldwell was conducted on 16 April 2014. By this time, the trial prosecutor recognised his error in relation to the construction of s 6B of the Sentencing Act, and drew this matter to the judge's attention. Following the plea hearing, Jason Caldwell was sentenced as follows:

Criminal damage [Crimes Act 1958 (Vic) s 197(1)]

10 years [Crimes Act 1958 (Vic) s 197(1)]

Theft [Crimes Act 1958 (Vic) s 74(1)]

10 years [Crimes Act 1958 (Vic) s 74(1)]

Arson [Crimes Act 1958 (Vic) s 197(6)]

15 years [Crimes Act 1958 (Vic) s 197(7)]

Obtain property by deception [Crimes Act 1958 (Vic) s 81(1)]

10 years [Crimes Act 1958 (Vic) s 81(1)]

Burglary [Crimes Act 1958 (Vic) s 76(1)]

10 years [Crimes Act 1958 (Vic) s 76(3)]

Attempted Theft [Crimes Act 1958 (Vic) s 321M]

5 years [Crimes Act 1958 (Vic) s321P]

5 The proper construction of s 6B of the Sentencing Act having been drawn to the judge's attention, Jason Caldwell was not sentenced in respect of charge 8 as a serious arson offender.

6 Kelly Caldwell seeks leave to appeal his sentence on the following grounds:

1. The total effective sentence between those imposed on the applicant and those imposed on Callow[2] are such as to demonstrate such marked disparity as to be an error in law.
2. The total effective sentence and the non-parole period are manifestly excessive.
3. The learned sentencing judge erred in failing to consider that the applicant had demonstrated rehabilitation whilst awaiting trial.
4. The learned sentencing judge erred in declaring the applicant a Serious Arson Offender.
5. The applicant has a 'justifiable sense of grievance' about the relativity between the applicant's sentence and the sentence of Jason Caldwell.

7 Jason Caldwell seeks leave to appeal his sentence on the following grounds:

1. The total effective sentence and the non-parole period are manifestly excessive.
2. The learned sentencing judge paid too little regard to the issue of delay in relation to the sentence.
3. The exercise of the sentencing discretion miscarried as a result of:
   1. The failure of counsel to submit that Verdins[3] principles were relevant to the sentencing of the applicant,
   2. The failure of the learned sentencing judge to consider the application of those principles in sentencing.

8 The offending may be briefly described as follows.

9 In 2009 and 2010, the applicants and others (including their father Michael Caldwell) perpetrated a number of thefts within the Dandenong and Latrobe Valley areas of Victoria. The offences involved the theft of over $330,000 worth of copper and a further $300,000 worth of other items (including a prime mover truck and truck trailer, as well as other vehicles, trailers and other sundry items). While the offences for which Kelly Caldwell was convicted occurred between July 2009 and May 2010, the offences for which Jason Caldwell was convicted occurred between November 2009 and May 2010.

10 Charges 1 and 2 (which related to Kelly Caldwell, but not Jason Caldwell) occurred in the following circumstances. On 29 July 2009, Kelly Caldwell and Callow used wire cutters to cut a large hole in a secure fence so as to gain access to the premises of VB and Co Pty Ltd. Callow entered the property and removed a Toyota utility vehicle valued at $2,000 and copper cable valued at $200.

11 Charges 6, 7 and 8 occurred as follows. On 7 November 2009, the applicants used bolt cutters to gain access to the premises of Morrows Freightlines. The applicants smashed the passenger side window of a Scania Prime Mover and drove the vehicle from the premises, along with an attached Topstart Drop Deck Trailer loaded with 22 tonnes of PVC copper cable.

12 The applicants and Callow drove the Prime Mover to a remote bush location where they un-hitched the trailer and loaded some of the copper into a private vehicle. The applicants left the balance of the copper in the trailer at the remote location. Kelly Caldwell then drove the Prime Mover to Millers Road, Congulla, with Jason Caldwell and Callow following in the private vehicle, where the applicants set the Prime Mover alight. The Prime Mover (valued at $212,000) was destroyed in the fire.

13 The facts constituting charges 11 to 23 were as follows. Between 7 November 2009 and 16 December 2009, the applicants pawned approximately 11,245 kilograms of copper cable removed from the trailer stolen from the Morrows Freightlines premises. The applicants received $48,651.60 from these transactions.

14 The facts constituting charges 24 to 28 were as follows. On Saturday 30 January 2010, the applicants, with Callow, went to the premises of Middendorp Electric in Traralgon. Jason Caldwell and Callow climbed a fence to access the secure area and cut the securing padlock and chain to the secure gates and secure storage shed. Jason Caldwell and Callow pushed a dual axle tandem trailer into a storage shed and loaded the trailer with plastic spools of PVC coated copper wire and other items. The applicants covered the loaded trailer and left the premises.

15 On Sunday 31 January 2010 (at approximately 5.18pm), the applicants and Callow returned to the Middendorp Electric premises. Kelly Caldwell reversed a private vehicle into the secure compound to which Jason and Callow attached the loaded trailer. The applicants drove from the premises and took the trailer to a remote location. The applicants, with Callow, returned to the premises with the trailer at approximately 10.56pm and Jason and Callow re-loaded the trailer with copper wire and other items. Kelly Caldwell drove the private vehicle into the premises, Jason Caldwell and Callow attached the trailer to the private vehicle and the three left the premises sometime after midnight on 1 February 2010.

16 The total value of the plastic spools of PVC copper wire and other electrical fittings and products stolen (including the dual axle tandem trailer) from the Middendorp Electric premises was $54,983.66.

17 Charge 29 was constituted by the pawning of 456 kilograms of copper on 1 February 2010 (for which the amount of $2,336 was received).

18 Charge 30 was constituted by the pawning of 559 kilograms of copper on 5 February 2010 (for which the amount of $2,795 was received).

19 Charges 31 and 32 occurred in the following circumstances. In the early hours of 10 February 2010 the applicants, with Callow, attended the SP Ausnet Jeeralang Power Station Site in Morwell. Jason Caldwell and Callow accessed the premises by cutting the lock of a rear boundary gate and by cutting the lock of an internal secure personnel access gate. Jason Caldwell and Callow attempted to use a forklift and cherry picker to remove copper cable from the secure area but were unable to start the forklift. Jason Caldwell and Callow abandoned their attempts and walked from the site.

20 Charge 35 was constituted by the pawning of 340 kilograms of copper on 4 March 2010 (for which the amount of $1,700 was received).

21 Charge 36 (which related to Kelly Caldwell, but not Jason Caldwell) occurred in the following circumstances. On 5 April 2010, Kelly Caldwell entered into a rental contract with BP SERVICE STATION Guns Gully for the hire of a tandem car trailer. The trailer was due to be returned the following day. The trailer was not returned and has not been seen or located since. The value of the trailer was $5,000.

22 Charges 38 and 39 occurred in the following circumstances. On 18 April 2010, the applicants, together with Michael Caldwell, attended the premises of Primaweld Engineering in Morwell. Jason Caldwell and Michael Caldwell climbed the rear secure boundary fence and forced entry into a number of secure shipping containers within the secure compound. They then found a trailer and loaded it with copper and aluminium cable, tools and equipment. In the early hours of 19 April 2010, Kelly Caldwell and Twomey[4] drove a private vehicle to the access gates of the premises where Jason Caldwell had cut the secure lock.

23 Kelly Caldwell drove the private vehicle into the premises where Jason Caldwell, Michael Caldwell and Twomey attached the trailer to the private vehicle. The four men left the premises in the private vehicle with the stolen trailer, copper and equipment attached.

24 Charges 40 to 42 were constituted by the pawning of 727 kilograms of copper between 19 and 21 April 2010 ($3,098.10 was received in respect of these transactions).

25 Charges 43 and 44 occurred in the following circumstances. On 25 April 2010, the applicants attended the premises of SILCAR in Morwell. Jason Caldwell accessed the secure compound of the premises by walking through the premises of VB and Co Pty Ltd and cutting a hole in the fence between the properties. He then located a single axle trailer and loaded it with large quantities of copper and aluminium cable. He then used wire cutters to cut a section of a secure fence to allow room for Kelly Caldwell to drive a private vehicle into the premises. Jason Caldwell then attached the trailer to the private vehicle and the applicants left the premises. The value of the trailer and copper stolen on this occasion was $30,000.

26 Charges 48 and 49 occurred in the following circumstances. On 9 May 2010, the applicants attended the SP AUSNET site in Traralgon. Jason Caldwell cut the secure boundary fence to gain access to the premises and located a large wooden cable spool of copper. He then rolled the spool from the compound to a nearby road where Kelly Caldwell met him with a private vehicle. The applicants lifted the spool into the vehicle and drove to a residential address.

27 Charge 50 was constituted by the pawning of 47 kilograms of copper on 10 May 2010 ($171.55 was received in respect of this transaction).

Kelly Caldwell's application for leave to appeal against sentence

Parity between Kelly Caldwell and Callow (ground 1)

28 In ground 1, Kelly Caldwell contends that there is an unacceptable disparity between the sentence imposed upon him and the sentence imposed on a co-offender, Jacob Callow. As part of his complaint under ground 1, Kelly Caldwell contends that the judge did not properly take into account the significant delay that occurred in his case (offending occurring between July 2009 and May 2010, and sentence being imposed in March 2014).

29 Callow was sentenced by a different judge on 29 September 2011. He was sentenced in respect of eight charges (four burglaries and four thefts), six of which were based upon the same facts as six of the 39 offences for which Kelly Caldwell was sentenced. In respect of each of these six offences, Callow received the same sentence or a heavier sentence than that imposed upon Kelly Caldwell. The following table shows the relevant comparison between the sentences imposed upon Kelly Caldwell and those imposed upon Callow:

Theft of Scania truck and trailer from Morrows Freightlines

30 In the result, the judge who sentenced Callow imposed a total effective sentence of four years and nine months' imprisonment, before fixing a non-parole period of two years and nine months. It is immediately to be remembered that the total effective sentence of eight years and non-parole period of six years imposed upon Kelly Caldwell was imposed in respect of 39 offences.

31 So far as the delay in Kelly Caldwell's case was concerned, the judge said that it was regrettable that the matter had taken over four years to be heard, and that this was 'unacceptable'.[5] The judge went on to say:

I have taken into account the delay in the matter to the extent that you have been left in a state of uncertain suspense as to the outcome of these proceedings. Apart from the non-offending since February 2012 I have no material upon which to conclude that rehabilitation is a real prospect and that you have used the time since being bailed in 2010 to further your rehabilitation.[6]

32 The judge's reference to 'non-offending since February 2012' was a reference to the fact that Kelly Caldwell had committed no further offences following his release from prison in February 2012 after serving a 327 day sentence in respect of offences committed in 2011.

33 In support of ground 1, it was submitted that the judge should have imposed lesser sentences upon Kelly Caldwell than those imposed upon Callow because in Kelly Caldwell's case there was a significant delay which was not present in Callow's case. It was further submitted that Callow had a far more extensive criminal history than Kelly Caldwell, which criminal history included 'a significant prior conviction of armed robbery'. It may be accepted that the delay in Kelly Caldwell's case was unacceptable and that Callow's criminal history was significantly worse than Kelly Caldwell's.

34 However, there were significant differences between the cases of Kelly Caldwell and Callow that justified the imposition of the sentences that were in fact imposed. First, Callow pleaded guilty to the eight charges for which he was sentenced, whereas Kelly Caldwell was convicted at trial of his 39 charges. Secondly, Callow's plea of guilty was entered at the earliest possible stage and was found to demonstrate remorse as well as having utilitarian value. These facts alone more than justified the imposition of the sentences delivered by the judge in respect of the offences to which both Callow and Kelly Caldwell were parties - notwithstanding the issue of delay and the relative differences between their prior criminal histories. As to the significantly greater total effective sentence and non-parole period imposed upon Kelly Caldwell than those imposed upon Callow, such differences are explained by the fact that Kelly Caldwell fell to be sentenced for 39 offences, whereas Callow fell to be sentenced only in respect of eight offences.

35 When one takes the matters to which we have referred into account, there is no relevant disparity between the sentences imposed upon Kelly Caldwell and Callow. Ground 1 is without substance and must be rejected.

36 In ground 2, Kelly Caldwell makes complaint that the total effective sentence and non-parole period imposed upon him are manifestly excessive. There is nothing in this complaint. This was serious criminal conduct occurring over a period of months involving significant sums of money. The offending was planned and had a degree of sophistication. The individual sentences imposed, the orders for cumulation and the non-parole period were all well within bounds. Indeed, some might argue that the sentence imposed in respect of the arson charge (charge 8) was relatively light.

37 As with ground 1, reliance is placed upon the issue of delay. As we have already said, the judge appropriately considered the issue of delay, and the judge's reasons on this issue do not disclose any arguable error.

38 In arguing ground 2, Kelly Caldwell placed reliance upon this Court's decision in Caig v The Queen.[7] While similarities can be identified between the facts of the present case and the facts in Caig, there are relevant significant differences. First, Caig made full admissions to police several days after making a 'no comment' record of interview. Secondly, Caig pleaded guilty at an early stage and demonstrated some remorse. Thirdly, in respect of two of the charges, Caig's admissions and plea were 'very significant' because the offending would have been difficult to detect and prosecute in the absence of his admissions and plea. Fourthly, Caig offered to give evidence against a co-offender. None of these factors were present in Kelly Caldwell's case.

39 The individual sentences, the orders for cumulation, the total effective sentence and the non-parole period imposed in respect of Kelly Caldwell's offences were all within range and open to the judge. Accordingly, ground 2 must be rejected.

40 In ground 3, Kelly Caldwell makes complaint that the judge erred in failing to consider that he had demonstrated rehabilitation while awaiting trial. The nub of the argument was that upon release from prison in February 2012 following the serving of the sentence imposed for the offending that occurred in 2011, Kelly Caldwell has not offended again. The judge noted that apart from this period of non-offending there was no material upon which to conclude that rehabilitation was 'a real prospect'.[8] In our view the judge was entirely correct. There was no error in concluding that there was little (if any) rehabilitation demonstrated by the mere fact of non-offending for the modest period of a little over two years following the applicant's release from jail following the completion of his sentence for the offences committed in 2011. Ground 3 is without substance.

41 In ground 4, Kelly Caldwell makes complaint about the judge sentencing him on charge 8 as a serious arson offender. The Crown correctly concedes that Kelly Caldwell should not have been sentenced as a serious arson offender. It is regrettable that the judge was allowed to fall into this error as a result of not receiving the assistance he was entitled to expect to receive, and to receive, from trial counsel.

42 That said, in sentencing Kelly Caldwell, the judge did not impose a disproportionate sentence (as he might have done) under s 6D of the Sentencing Act.[9] In our view, notwithstanding the error made, there is no substance in ground 4. This is because it is not reasonably arguable that any different sentence should have been imposed in respect of charge 8 in any event.[10]

Parity with the sentence imposed upon Jason Caldwell (ground 5)

43 In ground 5, Kelly Caldwell complains that he has a 'justifiable sense of grievance' about the relativity between his sentence and the sentence imposed upon Jason Caldwell. Excluding the sentences imposed in respect of the three additional charges for which Kelly Caldwell was found guilty (which resulted in an additional four months' imprisonment being given to Kelly Caldwell), Kelly Caldwell complains about having to serve an extra two months when compared to the sentence imposed upon Jason Caldwell for the same offences. Further, complaint is made that while Kelly Caldwell only had nine prior convictions (three of which involved dishonesty) Jason Caldwell had almost 70 prior convictions (albeit that many of these did not involve dishonesty).[11]

44 There is nothing in this complaint. There is no relevant disparity between the sentences imposed. A significant aggravating feature in the case of Kelly Caldwell (not present in relation to the case of Jason Caldwell) was that the offences constituting charges 1, 2, 6 -9, 11-32 and 35 were committed by Kelly Caldwell while he was serving a suspended sentence. Ground 5 must be rejected.

45 Kelly Caldwell's application for leave to appeal against sentence must be refused.

Jason Caldwell's application for leave to appeal against sentence

46 In ground 1, Jason Caldwell asserts that the total effective sentence and non-parole period imposed upon him are manifestly excessive. In ground 2, complaint is made that the judge paid too little regard to the issue of delay.

Of course these matters occurred a long time ago and I have taken into account the delay to the extent that you have been left in a state of uncertain suspense as to the outcome of these proceedings. The other issue of delay is whether you can show that you have prospects of rehabilitation. I am unpersuaded about those. There has been no material put before me that suggests that I could be confident about any prospect of rehabilitation. In that context I was referred to remarks his Honour Judge Allen made that were referred to during the plea in a matter subsequent to these. The only relevance it has here to these offendings is in a consideration of your prospects of rehabilitation ... it is clear that you committed those offences that you were before Judge Allen on whilst you were on bail for these offences.[12]

48 There is no arguable error in the way the judge treated the issue of delay or rehabilitation (or indeed any other issue) in the sentencing of Jason Caldwell. The individual sentences, the orders for cumulation, the total effective sentence and non-parole period were all within bounds when one has regard to the seriousness of the offending and the totality of the applicant's circumstances. Grounds 1 and 2 must be rejected.

49 In the plea hearing before the judge, trial counsel for Jason Caldwell[13] failed to make any submissions based upon this Court's decision in R v Verdins.[14] Indeed, trial counsel expressly said to the judge that he was 'not raising Verdins'.

50 In ground 3, it is contended on behalf of Jason Caldwell that the failure of trial counsel to submit that Verdins was relevant, and the failure of the judge to consider the application of Verdins principles, resulted in the exercise of the sentencing discretion miscarrying.

51 In order to understand ground 3, it is necessary to set out some of what occurred during the plea hearing that commenced on 19 March 2014 (when Kelly Caldwell's plea was heard) and continued on 16 April 2014 (after an adjournment was granted on 19 March 2014). On 19 March, trial counsel for Jason Caldwell foreshadowed the obtaining of a psychological report in relation to Jason Caldwell. The judge responded:

It's going to be difficult, because your client has pleaded not guilty? From what he told me last time he is still adamant in that view. As you know histories are taken in those reports of the circumstances of the offending and the offender's attitude towards it.

It's one of the bases upon which a professional psychologist or psychiatric opinion is given. Is it really going to be of any use if that's the case?

...

Are you trying to make a Verdins point? Is that the point of it? Given that he says he hasn't done any of this it's going to be extremely difficult.

...

Given his criminal history and his attitude to running this trial I'm not going to lock you out from obtaining a report, but I've pointed out to you the possible deficiencies of it. How long do you need?

52 The judge then adjourned Jason Caldwell's plea hearing. Upon the resumption of the plea, counsel for Jason Caldwell tendered the report of a psychologist, David Ball. The judge then said that he had already read this report 'a couple of times'. There was then a discussion between the judge and counsel as to the contents of the report, including references to the fact that full scale IQ testing revealed that Jason Caldwell has an IQ of 70. It was at this point that his counsel said that he was not raising Verdins. The judge responded:

I'm not saying that there's a causal issue with the offending, but it is - given what Dr Ball has said, that there is a borderline - sorry, a borderline congenital defect, as that 70 figure, the 73 figure really is part of that description of borderline. It is not - I can't say much more about that, in terms of Kelly, but my submission would be that Mr Jason Caldwell, one of the sentencing provisions, one of the sentencing issues should be a provision for him to have that taken into account, in terms of his offending and indeed surviving in a relatively impoverished family.

53 The report from Dr Ball contained the following passages:

Mr Caldwell demonstrated generally poor judgement in clinical interview. He presents as lacking in insight into his current and previous offending and presents as psychologically unsophisticated. He has a history of failing to learn from previous mistakes and presents as lacking consequential thinking. There was no evidence of cognitive impairment not better accounted for by his dull intellect. As stated above, his full scale IQ is 70 which is at the second percentile and in the borderline range. This means that 98% of the tested population would perform better on this test than Mr Caldwell. ...

...

Mr Caldwell's social reasoning reflects his persisting personality disorder and dull intellect. His social reasoning is unsophisticated and he tends to reduce even complex problems to simplistic concrete terms. As a result he considers only a small number of options and rapidly forecloses on a solution without exploring either a comprehensive set of alternatives or giving sufficient time for the implications of the course of action to come to mind. Therefore, he tends to be impulsive. He makes poor decisions and frequently chooses his course of action based on short term considerations, such as anger or excitement, rather than on their long term consequences. He learns poorly and slowly from negative consequences and has a history of following his younger brother Kelly into poorly conceived and deeply flawed "get rich quick schemes".

...

In terms of intellectual impairment, Mr Caldwell presents as illiterate, innumerate and as a generally low functioning adult. I consider his impairment to be congenital rather than acquired. His intellectual impairment has been, and will continue to be, lifelong. I confirm that he must have been affected by his intellectual impairment and anti-social personality disorder at the time of his offending. His intellectual impairment will not remit. His personality disorder, while not necessarily lifelong, remains operative and will require long term treatment and management.

54 Counsel for Jason Caldwell submitted that the judge should have taken these opinions into account as establishing that Jason Caldwell suffered from a condition that affected his mental functioning at the time of his offending so as to reduce his moral culpability and/or the significance of general and/or specific deterrence. It was submitted that what the judge said on 19 March and 16 April showed that the judge wrongly formed the view that Verdins, as a matter of principle, could have no application in a case where an offender denied committing the crimes with which he or she had been convicted.

55 We reject the submission that the judge said that, as a matter of principle, Verdins could have no application in a case where an accused denies committing the crimes with which he or she was charged. It would have been error had the judge approached the issue in that way, but the submission involves a misreading of what the judge in fact said. The judge said no more than that, in circumstances where an offender does not admit committing the relevant crime, it may be very difficult to establish the necessary causal connection between the relevant mental condition, or intellectual limitation, of the offender and the offending conduct.[15]

56 Like a mental disorder, an intellectual disability will not ordinarily enliven the principle in Verdins that the offender's moral culpability is to be reduced unless some causal relationship is established between the disability and the commission of the crime.[16] However, in some cases involving intellectual disability, questions of causation are less likely to arise - simply because the circumstances of the offending and the nature or level of the intellectual disability bespeak a relevant causal nexus.[17] Thus where there is evidence of a lack of capacity to reason as to the wrongfulness of the conduct, the offender's moral culpability for the offence will be substantially reduced as may the need for denunciation and retribution. [18]

57 At the hearing of this application, an affidavit affirmed by Jason Caldwell's trial counsel was tendered without objection, in an attempt to explain why counsel eschewed a Verdins submission on behalf of his client. The affidavit discloses certain personal matters and difficulties suffered by that counsel at and around the time of the trial and plea hearing. In the affidavit, counsel deposes to not making a Verdins submission 'because of the hostility the judge had expressed to such a submission at the earlier hearing'.[19] Counsel goes on to say that, in retrospect, he believes he made a mistake in not arguing the point that the judge was wrong in his view about the applicability of Verdins. We observe that the learned judge, whilst expressing himself in strong terms, said nothing that should have deterred counsel from fearlessly pursuing such submissions as were in his client's interests. As things transpired, trial counsel eventually accepted that his Honour's view was correct. He then abandoned reliance upon Verdins principles.

58 The submission before us initially proceeded upon a wrong premise: namely, that the judge stated, as a matter of principle, that Verdins could not apply in a case where an accused (like Jason Caldwell) denies committing the relevant offences. The judge made no such statement. All the judge said was that there was a real difficulty associated with relying upon Verdins principles relating to a reduction in moral culpability, or a reduction in the importance of general and specific deterrence, in cases where the question of how, or whether, the particular mental condition could have affected the accused at the time of offending might not (or could not) be known because the accused denies engaging in the relevant offending. In this, the judge was undoubtedly correct. Counsel before us eventually conceded that was how his Honour's remarks were to be understood.

59 Nevertheless, having regard to the contents of trial counsel's affidavit, the Court considered it appropriate to look for itself at the report of Dr Ball to determine whether or not Verdins principles were engaged and should have been considered. Undertaking that exercise, in our view there was no error by the judge in failing to find that any relevant Verdins principle was engaged in the present case. Trial counsel was right to have abandoned reliance upon Verdins principles. At its highest, the opinion of Dr Ball was that Jason Caldwell 'must have been affected by his intellectual impairment and anti-social personality disorder at the time of his offending'. While one might accept that this statement encompassed all of the matters to which Dr Ball had earlier referred to in his report, what Dr Ball said is no more than a statement of the obvious. That is, if a person has a permanent intellectual impairment then at all times that person will be affected by it. Dr Ball's report says nothing as to whether (or indeed how) the intellectual impairment he measured affected (if at all) the mental functioning of the applicant at the time of his offending. No party suggested before this Court that the mere existence of Jason Caldwell's intellectual disability bespoke a relevant link between that disability and the offending committed by him. In our view, the evidence (such that it was) before the judge did not enable the judge to reason that Jason Caldwell's intellectual disability meant that his ability to reason as to the wrongfulness of his conduct was significantly or relevantly impaired to the point where the judge should have concluded that Jason Caldwell's moral culpability was reduced.

60 For these reasons, ground 3 must be rejected. However, we should note for the sake of completeness that, in any event, the judge did not ignore Dr Ball's report. What was said by Dr Ball was in fact taken into account. The judge said:

Your counsel although referring me to Mr Ball's report, did not make what is known as a Verdins submission. I understand that, as you do not accept that you were properly convicted. You still maintain your innocence.

However, your counsel asked me to take into account the factors that I have just referred to in Mr Ball's statement and the other matters mentioned in it as part of your general background and picture and I have done so.[20]

[1] Who did not appear for the Crown before this Court.

[2] A co-offender about whom we will say more below.

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[5] DPP v Caldwell, Unreported County Court, Judge Montgomery, delivered 20 March 2014 ('Kelly Caldwell Reasons') [15].

[7] [2011] VSCA 359 ('Caig').

[10] See ss 280(1) and 281 of the Criminal Procedure Act 2009.

[11] For further background in relation to some of Jason Caldwell's prior convictions, see this Court's decisions of R v Patton, Caldwell and Robinson [1998] 1 VR 7 and R v Caldwell (2005) VSCA 15.

[12] DPP v Caldwell, Unreported County Court, Judge Montgomery, 16 April 2014 ('Jason Caldwell Reasons') [30].

[13] Not counsel who appeared for Jason Caldwell before this Court.

[14] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[15] See Romero v R (2011) 32 VR 486, 490 [13] and 491 [18].

[16] R v Wise [2007] VSCA 266, [31]; DPP v Patterson [2009] VSCA 222, [47]; Ashe v The Queen [2010] VSCA 119, [14]; Bennett v The Queen [2011] VSCA 253, [60]-[61].

[17] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 139 [54].