Carr (a pseudonym) v The Queen [2021] VSCA 130

1 On 28 August 2019, a jury empanelled in the County Court found the applicant guilty of sexual assault of a child under the age of 16[2] (five charges - charges 1, 2, 4, 6 and 7), sexual penetration of a child or lineal descendant[3] (two charges - charges 3 and 5) and making a threat to kill[4] (charge 8).

2 Following a plea in mitigation, on 24 October 2019 the trial judge sentenced the applicant to a total effective sentence of nine years and four months' imprisonment, with a non-parole period of six years and four months, in accordance with the following table:

Sentenced as a serious sexual offender on charges 2, 4, 5, 6, 7 and 8 pursuant to s 6F of the Sentencing Act 1991; registration for life pursuant to s 34 of the Sex Offenders Registration Act 2004; forensic procedure order pursuant to s 464ZF of the Crimes Act 1958.

3 The applicant seeks leave to appeal on a single ground that asserts that the sentencing judge 'erred in principle by not moderating general deterrence as a sentencing consideration in light of the applicant's intellectual disability'.

4 For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant in the manner set out below.[5]

5 At the time of the offending, 10 September 2017, the applicant was aged 39 years.[6] The complainant, his son 'LH', was aged eight.

6 The applicant regularly visited his sister-in-law's house with his wife 'RH', daughter 'BH' (aged four) and LH. When they stayed overnight, the family shared a bedroom which had two beds in it. The usual sleeping arrangement was that a double bed would be pushed up against a king-sized single bed. LH would sleep on the king-sized single bed, and his sister would be next to him on the double bed. RH would sleep in the middle of the double bed, and the applicant would sleep beside his wife, furthest away from LH.

7 On 10 September 2017, the family were sharing a bedroom during an overnight stay at the applicant's sister-in-law's house, adopting the usual sleeping arrangement.

8 Some time prior to 9.00 am, when the applicant's wife and daughter were still asleep, the applicant moved from his side of the bed and got into the king-sized single bed beside his son. LH observed the applicant look toward his wife to see if she was watching.

9 The applicant then proceeded to pinch LH on his bottom (charge 1 - sexual assault of a child under 16) and kissed his eyebrows and ears. He then kissed LH on the mouth and inserted his tongue (charge 2 - sexual assault of a child under 16). At some point, the applicant exposed his penis. He used his fingers to open the complainant's mouth, inserted his penis and shook it in the complainant's mouth in what the complainant described as a 'side to side and up and down' motion (charge 3 - sexual penetration of a child or lineal descendant). The applicant then pulled down his son's pants and kissed him on the bottom (charge 4 - sexual assault of a child under 16). He then put the complainant's penis in his mouth and began to suck on it, LH describing this activity as 'like you suck on a lollipop' (charge 5 - sexual penetration of a child or lineal descendant). The applicant then rubbed his penis against the complainant's penis (charge 6 - sexual assault of a child under 16). He also rubbed his penis against the complainant's bottom and placed his penis between the complainant's buttocks, but did not penetrate the anus (charge 7 - sexual assault of a child under 16).

10 At about 9.00 am, RH woke up and saw the applicant lying partially on the complainant with their bodies touching. The applicant quickly jumped back into his normal sleeping position and pretended to be asleep. RH quizzed him as to what was happening, and the applicant responded 'nothing' whilst keeping his eyes closed. She saw LH shaking or trembling in the bed.

11 The applicant's wife telephoned her sister (who was in the same house) and asked her to come to the bedroom to look after BH. RH then left the house with the complainant and drove to the family home. LH was shaking with fear and began crying and said, 'Did you see, Momma? Did you see?'. The complainant did not, however, disclose everything the applicant had done, failing to disclose the most serious sexual activity.

12 Subsequently, the applicant told LH that if he disclosed the full offending to his mother, he would kill her (charge 8 - make threat to kill). At a later point, when his mother asked him if anything else had happened, the complainant disclosed the more serious, penetrative conduct. When asked why he had not disclosed this earlier, LH told his mother about the threat, saying that he was scared he would lose her.

13 The applicant was arrested and interviewed in January 2018. He made a 'no comment' interview.

Evidence of the applicant's intellectual impairment

14 On the plea, a report by a clinical neuropsychologist, Ms Jane Lofthouse, dated 8 October 2019, was tendered (Exhibit 2). Ms Lofthouse, who had access to the applicant's medical and psychological history, assessed the applicant in prison on 4 October 2019, conducting a battery of tests. She said that the applicant 'presented as immature and although his speech was of correct intonation and pace his language was simple and he required extra explanation of the language used throughout the assessment'. He was also 'slow to respond and his answers were, at times, wandering and perseverative or repetitive'.

15 Ms Lofthouse noted that the applicant experiences psychogenic non-epileptic seizures. These are not related to a brain disorder per se but rather psychological distress. Ms Lofthouse also noted that the applicant described himself as 'Anglo-Indian', with English spoken as his first language. He came to Melbourne with his parents and siblings at age 14. Although the applicant had attended mainstream schooling in India and then in Melbourne, he subsequently transferred to a school for mildly intellectually disabled students. A guidance officer from the Directorate of School Education, in a letter written in 1995, stated that the applicant underwent intelligence testing using the Wechsler Intelligence Scale for Children-Revised in 1993, the results of this assessment indicating that the applicant was functioning in the moderately intellectually disabled range.

16 As we have indicated, Ms Lofthouse administered a number of psychological tests. She reported:

To ascertain if [the applicant] has suffered any intellectual decline over time such as that related to acquired brain injury a prediction of his premorbid intellectual function was made based on tests of acquired knowledge such as his literacy skills, general knowledge, the results of the intellectual testing in 1993 and psychosocial factors such as his education and employment history. On the basis of these factors [the applicant's] Full Scale Intelligence Quotient was predicted to fall in the extremely low, borderline and low average ranges.

[The applicant] completed the subtests of the Wechsler Adult Intelligence Scale, which is a common measure of intellectual function. The comparison data includes individual subtest scores, which have a mean of 10 and a standard deviation of 3 and index scores, which have a mean of 100 and a standard deviation of 15. These comparisons are made across groups of same age individuals and cover the areas of verbal and nonverbal problem solving, working memory and speed of information processing. Percentile ranks that place a person's score on a scale up to one hundred are also reported.

[The applicant's] composite score on the Wechsler Adult Intelligence Scale, as expressed by his Full Scale Intelligence Quotient, was 61 and within the extremely low range (below the first percentile). This score is significantly below average and places [the applicant] better than or equal to one percent of similar age adults. There was however a significant difference found between [the applicant's] ability to process verbal in comparison to nonverbal material with his Verbal Comprehension Index (verbal material) being 63 and within the extremely low range (at the first percentile) and his Perceptual Reasoning Index (nonverbal material) being 73 and within the borderline range (at the fourth percentile). This difference was of limited interpretive value however as [the applicant's] scores on the nonverbal scale were also below average falling in the borderline and low average ranges.

17 Ultimately, Ms Lofthouse said that on 'a test of general intellectual function, the Wechsler Adult Intelligence Scale-Fourth Edition [the applicant's] composite score, or Full Scale Intelligence Quotient fell within the extremely low range'. She expressed the view that the applicant 'demonstrates a global and enduring pattern of significant intellectual impairment which will place him at risk of reaching rigid and ill-considered solutions', and said that his 'capacity to exercise appropriate judgements will impact on his ability to appropriately control his behaviour'. Ms Lofthouse added that if his 'intellectual impairment is not taken into account and if he does not receive treatment for his psychological issues he may find it more difficult to complete a period of incarceration in comparison to persons who do not suffer from these conditions'.

18 In Muldrock, the High Court observed:[7]

One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:[8]

'General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.'

In the same case, Lush J explained the reason for the principle in this way:[9]

'[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.'

The principle is well recognised.[10] It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence.[11] Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

19 In his reasons for sentence, among other things the judge observed:

It is plain from the report of Ms Lofthouse that you do not function at a high level. Far from it. You have an intellectual disability and that has been a lifelong condition and is not owing to some later acquired brain injury. There are old reports referred to by Ms Lofthouse which confirm that view.

On any view of the materials, you function at a very low level indeed and you always have. So tags or labels are not the key thing for me to consider. However your disability is labelled or tagged, it is clear that your disability has had a sizeable impact upon you over the course of your life. That much is obvious. ...

21 The judge went on to hold, however, that the applicant's disability - 'such as it is' - did not in any way erode the applicant's 'understanding or appreciation of the seriousness and wrongfulness of this criminal conduct or impact upon [his] ability to actually be deterred'. It did not 'obscure [his] intent and it is pure guesswork to suggest that it impacts upon [his] ability to make calm and rational choices'. And the judge was 'not satisfied on the balance of probabilities that there is any realistic connection between [the applicant's] disability and this offending'.

22 Further, the judge noted that the applicant's counsel had conceded that the first limb of Verdins[12] was not enlivened, so that the judge was satisfied that there was no reduction of the applicant's moral culpability. Moreover, the judge saw no reason based on Verdins to 'reduce the weight to be given to general or specific deterrence'. The judge was, however, 'prepared in the circumstances to find some modest increase in custodial burden here owing to [the applicant's] intellectual disability', and make 'some modest allowance' for the fact that the applicant 'will find prison more onerous than someone without that disability'.

23 On the plea, the prosecutor had submitted to the judge that, based on Ms Lofthouse's report, the applicant's intellectual disability 'can't be said to have any link to the offending', so that Verdins 'is not enlivened'. The prosecution's position is that the applicant 'knows what he's doing, or has done, is wrong', and therefore 'can't support that there's any Verdins reduction of moral culpability in relation to the charges before the court' (albeit that the applicant's 'particular characteristics' had to be taken into account in a 'general sense').

24 As we have mentioned, the applicant's full scale IQ is 61, which, according to Ms Lofthouse, puts him 'within the extremely low range (below the first percentile)'. Furthermore, Ms Lofthouse in effect expressed the view that the applicant displayed an all-encompassing and persistent pattern of significant intellectual impairment, which impinged upon his capacity to exercise appropriate judgement and to appropriately control his behaviour. Given that this is so, we consider that the applicant's counsel should not have conceded, and the judge should not have concluded, that the applicant's moral culpability was not reduced by his intellectual impairment.

25 Moreover, given Ms Lofthouse's opinion that the applicant's mental impairment adversely affected his capacity to exercise proper judgement and to control his behaviour, we consider that the evidence did go some way towards showing a connection between the applicant's mental impairment and the offending. In circumstances in which the applicant had a reduced capacity to reason as a person without his intellectual impairment might have, and to control his behaviour, the judge was wrong not to moderate to some extent the weight to be given to both general and specific deterrence. Not only was the applicant's moral culpability for the offending reduced, but the 'retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity' were not in full measure appropriate to his situation and the needs of community protection.

26 Given these conclusions, we consider that the applicant has made good his ground of appeal. The sentencing discretion has been reopened and should be exercised afresh by this Court. In so doing, we take into account the various matters urged in mitigation of sentence, and also bear in mind Ms Lofthouse's opinion that the applicant may well find it more difficult to complete a period of incarceration in comparison to persons who do not suffer from these conditions. Furthermore, we take into account the very serious nature of the applicant's offending, and make it clear that, were it not for the applicant's intellectual impairment, a sentence of significantly greater severity would have been called for.

27 We will grant leave to appeal against sentence and allow the appeal. In substitution for the sentence imposed in the County Court, we would make orders so as to effect a sentence in accordance with the following table:

Sexual assault of a child under the age of 16[13]

28 All other orders of the County Court will be confirmed.

[1] These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

[2] Crimes Act 1958, s 49D(1). The maximum penalty is 10 years' imprisonment.

[3] Crimes Act 1958, s 50C(1). The maximum penalty is 25 years' imprisonment.

[4] Crimes Act 1958, s 20. The maximum penalty is 10 years' imprisonment.

[6] He was born on 26 August 1978, and is now aged 42 years.

[7] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 138-9 [53]-[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (citations as in original).

[8] R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160.

[9] R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160-161.

[10] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VicRp 17; [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48.

[11] See R v Engert (1995) 84 A Crim R 67 at 71.

[12] In R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32], the Court (Maxwell P, Buchanan and Vincent JJA) set out a number of propositions, including the following:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

[13] Sentenced as a serious sexual offender on charges 2, 4, 5, 6, 7 and 8 pursuant to s 6F of the Sentencing Act 1991.