DPP v Cramp [2019] VSCA 174

1 Kimberley Joyce Cramp, the respondent, is a 29 year old[1] Aboriginal woman with an IQ of 63. She was born with cerebral palsy, resulting in her having some 29 surgical operations before her eighteenth birthday, often being rendered wheelchair-bound as a result. Her cerebral palsy continues to affect her to the extent that there are days that she cannot get out of bed. The respondent has been on a Disability Support Pension since the age of 16, her carer in recent years being her partner (and co-offender) Alexander Trewin ('Trewin'), who relevantly receives a Carer's Allowance. She meets the DSM-5[2] criteria for intellectual disability and persistent depressive disorder (dysthymia) with anxious distress.

2 As a child, the respondent attended Corowa Primary School to Grade 5, requiring the assistance of an integration aide. She completed Grade 6 at Belvour Special School in West Wodonga, which provides an education for five to 18 year old students having mild to severe intellectual disabilities. With further assistance from integration aides, she attended Wodonga Secondary College (although she was held back at Year 8 and 9 levels, rather than progressing to Year 10). During her time at secondary school, the respondent was persistently teased and bullied because of her physical disability. She left school in 2008, when aged 17 years.

3 The respondent has given birth to three sons (in 2008, 2012 and 2016) - Trewin being the father of her third son - and a daughter (in 2010). All of her children have been removed from her care. She has supervised access with her three youngest children, and has contact with her eldest son on special occasions (depending on his foster parents' willingness). It appears that the respondent prefers for her children to be in State care.

4 On 3 August 2018, the respondent - who has no prior convictions - pleaded guilty to three representative charges of rape[3] (charges 1, 2 and 7); two charges of false imprisonment[4] (charges 3 and 4); and two charges of theft[5] (charges 5 and 6).[6]

5 There were two victims, 'CLF' (charges 1, 3, 5 and 7) and 'ALR' (charges 2, 4 and 6), both of whom are themselves intellectually disabled. Charges 1 to 6 were alleged to have occurred between 15 August 2016 and 12 October 2016, and charge 7 was alleged to have occurred between 15 August 2016 and 3 January 2017, when CLF was aged 22 years and ALR was aged 25 or 26.

6 Following a plea in mitigation, conducted on 13 March and 26 April 2019, on 26 April 2019 the judge sentenced the respondent to a community correction order ('CCO') of two years' duration, with conditions that she perform 150 hours' unpaid community work; undergo treatment and rehabilitation for mental health issues; and be subject to supervision and monitoring by Corrections Victoria.[7], [8] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the respondent to an aggregate sentence of 12 months' imprisonment,[9] with a non-parole period of six months.[10]

7 By a notice dated 23 May 2019, the Director of Public Prosecutions appeals against the respondent's sentence on a single ground which contends that the sentence is manifestly inadequate. The ground is supported by 'particulars', which contend that the judge failed to give sufficient weight to the gravity of the offending (including its duration, nature and circumstances) and to the fact that each of the three rape charges is a representative charge; failed to have sufficient regard to the maximum penalty for the offences and to the impact of the respondent's offending on the victims; failed to 'sufficiently manifest protection of the community and specific deterrence in light of the risk of reoffending'; and failed to fix a sentence commensurate with the circumstances of the offending, giving too much weight to the respondent's cognitive impairment.

8 In our opinion, for the reasons that follow, the appeal should be dismissed.

9 In order to understand the issues raised by the Director's appeal, it is necessary to summarise the respondent's offending.

10 At the time of these offences, the respondent was living with Trewin as his de facto partner. As mentioned, they had a son who had been taken by the Department of Health and Human Services ('DHHS') and put into foster care.

11 Trewin had gone to school with CLF's previous boyfriend. In early 2015, Trewin introduced the respondent to CLF; and, in August 2016, the respondent in turn met ALR through CLF. Among other health issues, both CLF and ALR have an intellectual disability. After meeting CLF, the respondent commenced visiting CLF's home in Warrnambool on most alternate weekends.

12 CLF suffered from vaginal infections which required the regular application of vaginal cream. Ordinarily, the cream was applied by nurses who visited CLF at home. During a visit in the 2015 Easter break, CLF's nurses showed the respondent how to apply the cream to CLF's vagina. Later, in September 2015, CLF had a contraceptive Mirena intrauterine device ('IUD') inserted at a hospital.

13 Around August 2016, ALR visited CLF's home in Warrnambool. The respondent and Trewin also visited, and stayed for a few days. In mid-August, they asked CLF and ALR to come and stay at their house in Wodonga. CLF agreed to stay for a weekend but no longer, stating that she had to be back in Warrnambool before the next Monday to attend a doctor's appointment. CLF suggested - and the respondent agreed - that they all travel to Frankston on the train to visit her father.

14 The respondent and Trewin then took CLF and ALR to the railway station in Warrnambool. Without the knowledge of CLF and ALR, they purchased tickets to Southern Cross Station, with a connection to Wodonga. When the four arrived at Southern Cross Station, CLF and ALR were told that they were travelling to Wodonga. Although upset, both CLF and ALR agreed to accompany the respondent and Trewin to Wodonga, believing that they were going only for a matter of days.

15 On two occasions between 15 August 2016 and 12 October 2016, at the Wodonga house, the respondent penetrated CLF's vagina with a finger or fingers (charge 1 - representative charge of rape).

16 The first such occasion occurred about two days after CLF's arrival. As the respondent was applying the prescribed cream to CLF's vagina using an applicator, she inserted her fingers into CLF's vagina and started masturbating her. CLF 'started feeling weird' and told the respondent to stop. The respondent continued, however, saying, 'No, I'm helping you and I'm not stopping'.

17 On the second occasion, following a visit from DHHS, CLF was lying on her back with her knees bent while the respondent applied the vaginal cream. This time, the respondent used her fingers instead of an applicator. She put the cream 'far up' CLF's vagina and masturbated her, making CLF feel 'weird'. CLF told the respondent to stop, but the respondent said, 'My mum said it's okay'. Eventually the respondent told CLF - who was crying - that she could go.

18 Between 15 August 2016 and 12 October 2016, there were two occasions when the respondent also penetrated ALR's vagina with a finger or fingers (charge 2 - representative charge of rape).

19 The first of those occasions was about the second day that ALR arrived at Wodonga. Wearing gloves, the respondent told ALR to lie down and spread her legs apart. She looked into ALR's vagina, inserted her fingers and 'had a little fiddle'. According to ALR, the respondent was 'pushing and stretching' her vagina while CLF was present. The respondent said, 'Don't tell anyone what I've done'.

20 On the second occasion to which charge 2 relates, the respondent put cream onto her fingers and inserted them into ALR's vagina. This occurred in Wodonga on or about 11 October 2016, the day before the respondent and the victims travelled to CLF's father's house in Frankston.

21 Further, during the period between 15 August and 12 October 2016, CLF and ALR were falsely imprisoned by the respondent. Shortly after arriving in Wodonga, CLF and ALR wanted to go home, but the respondent told them, 'You have to stay here'. The false imprisonment involved the respondent taking control of the victims' money and telephones, and not permitting them to leave Wodonga. When authorities and friends called, the respondent told the victims to say that all was fine. On one occasion when a family friend of CLF's telephoned her, the respondent wrote 'we're fine' on a piece paper, and held it up for CLF to repeat. After that call, the respondent switched off both victims' phones. Trewin assisted the respondent to maintain the false imprisonment. Given their intellectual disabilities, and without access to their money, there was no realistic way that CLF and ALR could leave Wodonga without assistance.

22 The respondent had taken control of CLF's finances. On the second day after their arrival in Wodonga, the respondent took money from CLF's bank account and put it into another account. After a week in Wodonga, the respondent took CLF's ATM card (which had her PIN written on it). CLF asked the respondent where her ATM card was, and the respondent replied that it was in her own wallet because she had borrowed it. The respondent then stole approximately $4,000 belonging to CLF, being Centrelink benefits which she received during that period. She also took CLF to Centrelink to get an advance on her pension, and she and Trewin spent the advance (charge 5 - theft).

23 In the same period, the respondent also took control of ALR's finances. ALR was not allowed to keep her ATM cards. The respondent arranged for approximately $8,000 to be transferred from ALR's account into Trewin's account. She and Trewin also took ALR to Centrelink to obtain an advance on her pension. ALR was given a $1,000 advance and the money was withdrawn from ATMs, the respondent and Trewin spending the advance on themselves (charge 6 - theft). The respondent and Trewin used the victims' money for their own personal use, including the purchase of a dryer, a suitcase and other household items.

24 The events founding the third charge of rape involving CLF (charge 7 - representative charge of rape), occurred between 15 August 2016 and 3 January 2017. On two occasions the respondent penetrated CLF's vagina with her fingers and removed a Mirena IUD.

25 On the first occasion, which occurred during the period that CLF and ALR were at the Wodonga house, the respondent inserted her fingers into CLF's vagina and removed the IUD without CLF's consent. (The prosecution case was that the respondent wanted CLF to have a baby.) During their stay in Wodonga, the respondent had both victims submit to a number of medical procedures. Thus, at the insistence of the respondent, CLF had an ultrasound and a number of other medical procedures performed.

26 The respondent, Trewin and both victims travelled to Frankston on 12 October 2016, to stay with CLF's father. Within a few days of arriving at CLF's father's house, the two victims were taken out of the control of the respondent and Trewin.

27 Police were contacted, and a VARE[11] was conducted with both victims on 16 October 2016. During a consultation at hospital on 27 October 2016, it was confirmed that CLF's IUD had been removed. A second VARE was then conducted with CLF on 6 November 2016. ALR returned to her family in Stawell, and CLF returned to Warrnambool.

28 Later, on or around 22 December 2016, the respondent and Trewin travelled to Warrnambool and stayed with CLF. On 1 January 2017, at the request of CLF's mother, police conducted a welfare check on her. CLF told police that she did not need their assistance.

29 On or about 2 January 2017, Trewin left CLF's house and returned to Wodonga; and on 3 January 2017, police removed the respondent from CLF's house. It was around this period, after Trewin left CLF's house, that the second incident founding charge 7 occurred. During this second incident, the respondent penetrated CLF's vagina with her fingers while CLF was asleep, and removed another IUD. In the course of these events, CLF told the respondent that she needed to go to the toilet, and did so. CLF noticed blood in her 'pull-up', then returned to bed and to sleep.

30 When she awoke in the morning on 3 January 2017, the respondent showed CLF the IUD, which was sitting on the bed. CLF was bleeding from her vagina. She telephoned her mother and told her that the respondent had removed her IUD and had it in a bag. CLF took a photograph of the IUD and sent it to her mother. Her mother told CLF that she needed to go to the hospital. CLF's mother then contacted police, who removed the respondent from CLF's house later that day. CLF also went to the hospital with a family friend, taking the IUD with her in a plastic bag. Hospital staff then contacted the Informant at the Wodonga Sexual Offences and Child Abuse Investigation Team.

31 CLF underwent a forensic medical examination on 4 January 2017. Following this examination, a VARE was conducted with her during which she detailed the removal of her IUD.

32 The respondent was arrested in Wodonga on 5 January 2017. She was interviewed with the assistance of an independent third person, and gave 'no comment' answers to police questions.

33 A number of witnesses - not including the victims - were cross-examined at committal proceedings in December 2017. The matter was listed for trial in the County Court on 30 July 2018 - and a pre-trial voir dire was conducted that day with a medical witness on 30 July 2018 - but resolved on 3 August 2018.

34 Although counsel for the Director acknowledged in written submissions that the instant case 'presents a particularly unique and difficult sentencing task', and that a CCO is an available disposition for multiple offences of rape (particularly where the offender has an intellectual impairment), counsel submitted that in the circumstances of this case - involving multiple victims, multiple completed offences, representative charges and offending over a period of time - a CCO of two years' duration 'is wholly outside the range and was not reasonably open'.[12]

35 Further, notwithstanding that the Director did not plead specific error in any ground of appeal, counsel for the Director submitted that the sentencing judge failed in his reasons for sentence to identify any of the aggravating features of the respondent's offending, describing it merely as 'abuse'. The sentence imposed, so it was submitted, fails to reflect the serious nature of the offending and the maximum penalty for the offences.

36 In oral submissions, counsel for the Director made it plain that the sentences for rape were the 'principal focus' of the appeal. It was submitted both orally and in writing that, when identifying the purposes for which sentence was to be imposed, the judge failed to mention the representative nature of the rape charges, and failed to describe the gravity of the offending.[13] It was contended that it thus 'follows that the representative nature of the rape charges was not considered'.

37 Moreover, although the judge observed that the respondent 'demonstrated little remorse', and that he considered the risk of re-offending to be 'moderate to high', the judge failed to make a finding as to either the respondent's prospects of rehabilitation or as to her remorse. The Director's counsel submitted that not only do the reasons for sentence contain no findings as to the respondent's prospects of rehabilitation and remorse, but the sentence imposed failed to recognise the importance of specific deterrence and protection of the community as sentencing factors.

38 Counsel for the Director also submitted - once more notwithstanding any ground alleging specific error - that the judge 'failed to explain precisely how the impairment was taken into account, either in relation to her moral culpability[14] or in relation to the Verdins[[15]] principles'.[16]

39 With respect to the effect of the offending on the victims, counsel for the Director submitted that, beyond observing that the victims were 'both scared and distressed' as a result of the offending, and that they were 'vulnerable to being taken advantage of and, as such, were soft targets', the judge did not mention the impact of the offending on the victims. Given that the offending involved a breach of trust, it would have had a significant impact on the victims.

40 Finally, in written submissions counsel accepted that the principles to be applied in Director's appeals were as re-stated by this Court in Zhuang.[17] It was submitted that the sentence imposed in this case is of such manifest inadequacy as to constitute an error of principle. There is, it was submitted in both oral and written submissions, no reason to apply the residual discretion. Thus, even though the respondent has been in the community since sentence was imposed, this is not a case in which - were the sentence 'found to be wrong' - a statement to that effect would be sufficient.[18]

41 Counsel for the respondent submitted in writing that she 'was beset by a formidable array of disabilities and difficulties', including (but not limited to) her cerebral palsy and intellectual impairment. All six limbs of Verdins were engaged, so that there 'was a very clear basis for [the judge] to moderate the sentence in several respects'. Importantly, the clear and unchallenged expert psychological evidence was that the respondent's intellectual impairment 'contributed causally to the offending'. Full application of the principle of general deterrence, counsel submitted, would be 'repugnant to the underlying sense of humanity which guides proper sentencing'.[19]

42 The judge was also entitled, counsel submitted, to have regard to the respondent's cerebral palsy and her 'extraordinarily pitiable' background. Counsel contended that the 'unchallenged evidence of existing trauma, physical disability and intellectual disability, alone and in combination, suffused every aspect of [the respondent's] offending, and was highly and pervasively relevant to the instinctive synthesis'. No error, counsel submitted, 'can be shown or inferred'.

43 Acknowledging that the judge's reasons were 'economical', the respondent's counsel submitted that, 'because the expert witnesses were not cross-examined or criticised, their evidence required little articulated critical analysis'. Little analysis was required, since 'the expert material advanced was uncontentious, and because the prosecution accepted that, based upon this material inter alia, a CCO was within range'.[20]

44 Counsel submitted - without wishing to convey any disrespect to the victims - that the rapes were not 'gross or egregious examples' of the offence, and 'appear less than usually terrifying, protracted, painful or unusually degrading'. It was also submitted that the Director raised the asserted breach of trust, but 'artificially' so: the respondent was not a person 'entrusted' with duties in any meaningful manner, and, in any event, 'was and is clearly unfitted by nature or training to bear any such trust'. Indeed, all four of her children had been removed from her care. As to the false imprisonment charges, it was submitted that although the duration was significant, 'the deprivation of liberty was relatively nuanced and non-violent'. So much 'reduces the vice of the offences' duration' when compared with 'more standard' examples of false imprisonment. Counsel accepted that the 'rolled-up' theft charges were 'not trivial, but by no means invited a gaol sentence'.

45 The risk of re-offending, counsel contended, 'was not so high that community protection was a factor supporting incarceration'. It was submitted that the respondent had no prior convictions (or any subsequent matters), and the 'bizarre circumstances of the offending are not likely to occur again'. On the evidence, the asserted 'likelihood of offending' was only 'moderate to high' if adequate intervention and disability support were absent. The negative effect of imprisonment, counsel submitted, is 'notorious'. Any specifically deterrent benefit to the community would be outweighed by the damage likely to be inflicted upon the respondent. Community protection, counsel argued, 'is not always served by incarceration'. In this case, imprisonment would have a polluting influence upon 'a very vulnerable person in custody'. The respondent 'lives in the community today without catastrophe'.

46 Finally, counsel submitted that this is a powerful case for the exercise of the Court's residual discretion not to intervene. Even if the sentence is found to be wrong, a statement to that effect is sufficient. This was a 'particularly unique and difficult sentencing task'[21] because of the complex circumstances of this case. The circumstances 'cry out' for a sentence which does not involve the respondent being incarcerated. Her disabilities and her history remain unchanged. Further, there has been significant delay; and the respondent has been in the community since sentence, undergoing her CCO (no criticism being made of her progress).[22] Dismissal of the appeal, counsel submitted, would in no respect undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. It would be unjust and oppressive now to incarcerate the respondent.

47 Available records show that, from the time that she was three years old, Child Protection Services (NSW) had significant involvement with the respondent over a number of years. In a neuropsychology report prepared by Dr Peter Dowling, dated 28 December 2016, it was noted:

There were a total of 12 reports during the period 1993-2006 ... Concerns included physical harm, verbal abuse, environmental neglect, the mother's low intelligence, parental failure to provide adequate medical attention when Kimberley was diagnosed with cerebral palsy, likelihood of sexual harm, and ongoing mother-daughter verbal and physical abuse.

48 Dr Dowling estimated the respondent's IQ to be 63. Due to her low general cognitive ability, Dr Dowling thought, the respondent may have difficulty in social functioning because of an inability to fully understand non-verbal aspects of social communication. Prior to adulthood, the respondent was in the position of needing and receiving support from others. This might have fostered an egocentric pattern of thinking and behaving, together with a reduced sense of responsibility for others.

49 Alice Crole, a clinical psychologist, had also assessed the respondent. In her report, dated 16 October 2018, she noted that the respondent was a (then) 28 year old woman of Aboriginal heritage who met 'the DSM-5 criteria for intellectual disability and persistent depressive disorder (dysthymia) with anxious distress'. (Ms Crole also provided a differential diagnosis of antisocial personality disorder.) At the time of her assessment, the respondent was residing in public housing in Wodonga with Trewin, 'her carer and partner'. Ms Crole reported that the respondent grew up in Dubbo, Corowa, and Albury. The respondent was born two months premature and was afflicted with cerebral palsy, 'a physical disability that affects movement and posture'. Ms Crole noted that the respondent 'had a total of 29 operations before her eighteenth birthday that often left her wheelchair-bound'. The respondent 'had to use a walking frame throughout primary school and reported that she had metal rods inserted into her legs at age 13 that necessitated a wheel chair during the recovery period'.

[The respondent's] intellectual disability is likely to have reduced her ability to understand the wrongfulness of her actions in relation to the offences. Her low intellect may furthermore impede her ability to make reasoned decisions and appropriate judgments, such that she was likely to have been easily led by the co-accused. According to Dr Dowling, [the respondent's] area of weakness is failing to understand nonverbal cues that convey information about the feeling states of others and to understand why this might be a problem. It is likely therefore, that she lacked ability to empathise with the victims at the time of offending. Of concern, she furthermore lacked expression of empathy, regret, and remorse during the assessment, which may reflect combination of her intellectual disability and attachment trauma.

It is the writer's opinion that lacking accountability for her actions and absence of remorse is a risk factor for future offending.

It is the opinion of the writer that [the respondent] will find imprisonment more difficult than a person who does not have dual disability (i.e. intellectual disability in addition to persistent depressive disorder) for several reasons. First, she has demonstrated inability to regulate her affect, such that she tends to 'smash things up' to cope. Such emotional dysregulation is common feature among people with intellectual disability. Second, imprisonment is likely to worsen her depressive symptoms, because of her compromised ability to cope. This could be complicated by the nature of her charges, which may attract unwanted attention in prison. Third, research has shown that people with a cognitive disability face greater difficulties in dealing with the criminal justice system than other groups, which can lead to a cycle of recidivism. For example, they may have limited understanding of their legal rights, be easily intimidated, respond impulsively without thinking strategically through the issues, have trouble controlling their emotions, or have difficulty communicating. Finally, to the writer's knowledge, there are no specific custodial programs aimed at offenders with intellectual disability.

51 Dr Linda Borg, a clinical neuropsychologist, had also assessed the respondent, and provided a report dated 4 December 2018. Her findings included that the respondent's intellectual functioning 'is consistently within (or bordering on) intellectual impaired ranges - which places her in the bottom 2% of the population (where 98% of age matched peers would perform better)'. The respondent's intellectual disability 'is a developmental disorder and hence is permanent in nature, and present from birth'. Her history of childhood neglect and abuse made additional contributions to her personality and mood. The 'underlying neurobiological vulnerability associated with her intellectual disability is likely to have been exacerbated secondary to [the respondent's] history of abuse'. Dr Borg said that the respondent

has difficulty reasoning and weighing the consequences of actions, which is compounded by impaired insight, which limits her ability to adapt behaviour in response to feedback or when a situation has a negative consequence. As such, it is considered that [the respondent's] ability to make calm, reasoned and informed choices is considerably compromised.

52 Addressing the question whether imprisonment would be more difficult for the respondent than someone else not having her condition, Dr Borg stated that the respondent 'would be considered vulnerable if incarcerated, as she is likely to be easily led, tending to follow others - with the propensity for bullying and exposure to negative influences is [scil., being] high'. Without adequate intervention and disability support, Dr Borg thought, the respondent's 'likelihood of reoffending is moderate-high'.

53 The judge had before him the expert psychological and neuropsychological opinions of Dr Dowling, Ms Crole and Dr Borg. Those opinions were not challenged by the prosecution. His Honour also received a pre-sentence report dated 24 April 2019, authored by David Byles, of Wangaratta Community Correctional Services; and a Justice Plan, dated 24 April 2019, prepared by Noeleen Smith, Manager of the East Division Disability Justice Team. We need not repeat in any detail what is contained in those reports. The contents of Ms Smith's report further emphasised, however, the respondent's pitiable circumstances, including her inability to get out of bed some days because of her cerebral palsy. Ms Smith made the point that, such is her condition, the respondent is eligible for participation in the National Disability Insurance Scheme. And among other things, Mr Byles reported:

[The respondent's] intellectual disability, antisocial personality disorder and her persistent depressive disorder will need to be carefully managed. Discussions have been held with DHHS in the course of their compiling the justice plan and a [sic] strategies have been devised to assist [the respondent] to comply with the conditions of a [CCO].

Given the sexual nature of the offending, [the respondent] will need to be assessed by the Specialised Offender Assessment and Treatment Service (SOATS) and if found suitable undertake appropriate programs.

...

[The respondent] has been assessed as being at a moderate risk of re-offending. Her lack of any prior criminal offences gives hope that her offending has been an aberration and she will continue to live a crime-free life.

[The respondent] is a 28 year old woman who suffers from cerebral palsy and has an intellectual disability. She is a first time offender who has been assessed as being at a moderate risk of re-offending. Her continued denial of offending, while concerning may well be as a result of her condition. Nevertheless, she is considered suitable for a [CCO] with the following conditions recommended:

48D(3)(e)[[23]] - Mental health assessment and treatment

48D(3)(f) - Offending behaviour programs

48E - Supervision

48F - Non association

It is recommended that any order imposed upon [the respondent] run for at least 18 months to allow her to be assessed and complete appropriate programs.

54 In sentencing both the respondent and Trewin, the judge made it plain that he took into account the respondent's and Trewin's intellectual capacities (or, more aptly, their incapacities). His sentencing remarks include the following:[24]

The purposes for which I am permitted to impose a sentence for offences committed are set out in s 5(1) of the Sentencing Act 1991. Here, I consider the principle [sic] purposes applicable are to rehabilitate both of you as best as can be achieved and to deter you and others in the community from committing similar offences. I also take into account some need for the community, or at least some parts of it, to be protected from both of you.

Further, I am required to take into account a number of considerations set out in [s 5(2) of the Act]. In particular, I take into account your relatively early pleas of guilty to these offences, that both of you experienced what can only be described as difficult upbringings and, thirdly, that you have both had limited education, due largely to your limited intellectual capabilities, especially in the case of [the respondent].

Naturally, I am concerned by the apparent lack of remorse shown, especially by [the respondent], in her continued denials of the offences. To a much lesser extent, by Mr Trewin.

I accept that [the respondent's] and Mr Trewin's culpability for offending is reduced by reason of their cognitive impairment. These are matters in which if [the respondent] and Mr Trewin had been of normal intellect, the need for both to be sentenced to substantial terms of imprisonment would have been strong and, indeed, irresistible.

However, the court is here dealing with the abuse by two persons with significant cognitive impairment, in the case of [the respondent], significant intellectual disability, and a lesser disability in the case of Mr Trewin, against two complainants with even higher significant intellectual disabilities_. I accept that because of your respective disabilities, a prison sentence for either of you would be more onerous than usual._

Taking into account all of the circumstances and, particularly, the expert evidence before me to which I've referred, I am of the view that the purposes for which I am to sentence you can be achieved without incarceration. I consider that [CCOs] with appropriate conditions attached would achieve the purpose for which I'm to sentence you in both of your cases. ...

55 Although these remarks were the subject of criticism by the Director's counsel, it is clear that the judge was of the view that the respondent's moral culpability for the offending was reduced by reason of her cognitive impairment. Plainly, that finding was open to the judge. Further, his Honour's reference to the 'irresistible' need to sentence the respondent to a substantial term of imprisonment if she had been of 'normal intellect', can only be understood to be an allusion to the manner in which the several factors set out in s 5(1) of the Sentencing Act 1991 fell to be applied in light of the respondent's intellectual impairment. (Indeed, his Honour made specific reference to the sentencing purposes of general and specific deterrence, rehabilitation and community protection.) It is also clear that the judge accepted that imprisonment would be 'more onerous than usual' for the respondent because of her condition. Once more, that finding plainly was open.

56 In the end, however, it is the sentence itself - not the judge's remarks when imposing it - that is important, since the Director's complaint in the ground of appeal is not one of specific error, but of manifest inadequacy. Manifest inadequacy is a conclusion, which does not depend on the identification, or attribution, of error in the judge's sentencing remarks. Moreover, the addition of 'particulars' to a ground asserting manifest inadequacy does not affect the essential approach that this Court must take to a claim of manifest inadequacy. As Priest JA observed in Weybury:[25]

Ground 1 claims that the sentences ... are manifestly inadequate. A number of supposed 'particulars' are subjoined. They assert that, in one way or another, the sentencing judge 'failed to regard' (or 'have sufficient regard'), or 'had regard', or 'failed to reflect' (or 'properly reflect'), or 'sufficiently to manifest', various matters.

To my mind - and despite some recognition being given to the notion that a ground claiming manifest excess may be supported by particulars[26] (at least concerning the 'weight' to be given to certain features)[27] - such so called 'particulars' of manifest inadequacy are of little or no utility, since a conclusion that a sentence is manifestly inadequate does not depend upon attribution of identified specific error in the sentencing judge's reasoning. Manifest inadequacy is a conclusion. Inadequacy is, or is not, plainly apparent. A sentence is, or is not, unreasonable or plainly unjust.[28] Perhaps more often than not, a conclusion of manifest inadequacy does not admit of elaboration save to state the respect in which the sentence is inadequate, such inadequacy resulting because the wrong kind of sentence was imposed, or because the sentence imposed is manifestly too short. The members of the appellate court will weigh for themselves all relevant features of the respondent and the offending - including those that aggravate and those that mitigate - and intuitively synthesise each factor bearing on the exercise of the sentencing discretion. In so doing the court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different directions.[29] Ultimately, appellate intervention on the ground of manifest inadequacy is not warranted unless, having regard to all of the relevant sentencing factors - including the degree to which the impugned sentence differs from sentences that have been imposed in cases which are truly comparable - the appellate court is 'driven to conclude that there must have been some misapplication of principle'.[30]

57 Having taken into account all of the material before the sentencing judge - including the circumstances of the offending and of the respondent (embracing all of the aggravating and mitigating features) - we have not been driven to conclude that there must have been some misapplication of principle in the imposition of the respondent's sentence. It is not plainly apparent to us that the sentence under attack is inadequate, or is unreasonable or plainly unjust. We fail to see that the sentence is manifestly inadequate.

58 Undoubtedly the sentence is lenient - that cannot be gainsaid - but that leniency is explained principally by the respondent's personal circumstances. We consider that the leniency extended by the judge was justified.

59 The circumstances of the digital rapes were highly unusual. As counsel for the respondent submitted, they did not have some of the features of degradation that often accompany the crime of digital rape. Moreover, the respondent's motivation for the offending - particularly the removal of CLF's IUD so as to promote pregnancy - is odd, and seems best explained by the respondent's reduced ability to understand the wrongfulness of her actions and to make reasoned decisions and appropriate judgments. Similarly, the circumstances of the false imprisonments were also highly unusual, and did not have any of the aggravating features which routinely accompany the offence. Further, although the charges of theft involved the exploitation of vulnerable victims, they were not so serious that, standing alone, they would have justified a sentence of imprisonment.

60 Before leaving the circumstances of the rape charges, we should observe that we derived no assistance from the Director's resort to purportedly comparable sentencing cases.[31] As far as we could see, there was no sentencing principle of particular relevance to be derived from the cited cases. Furthermore, the factual circumstances of the cases relied upon were so different from those of the instant case as to make them inapt as even a general guide as to the appropriate range.[32]

61 As we have said, it was open to the judge to find that the respondent's intellectual disability significantly reduced her moral culpability for all of her offending. It was therefore necessary to moderate both general and specific deterrence as sentencing considerations, and to regard denunciation and just punishment as being of limited relevance. True it is that the respondent has little or no remorse, but according to the expert evidence that absence of remorse is directly linked to her intellectual incapacities. She does not, however, present any particular danger to the general community as a result of conduct arising from her intellectual deficits.

62 Since there is no controversy as to the reality of the respondent's intellectual impairment, it is useful to repeat the observations of the High Court in Muldrock concerning the sentencing of intellectually impaired offenders_:_[33]

... 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:[34]

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:[35]

[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.[36] 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.[37] 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.

63 Given the respondent's intellectual impairment, and the diminution of her moral culpability as a result of it, this was not a case that demanded that she be imprisoned. To have imprisoned her would have been largely to ignore her impairment. Indeed, we consider that it would have been inhumane.

64 But even had we considered the sentence to be manifestly inadequate, we would nonetheless have dismissed the appeal in the exercise of the residual discretion.[38] When faced with any Director's appeal in which a custodial sentence did not commend itself to the sentencing judge, this Court ordinarily will be slow to intervene and consign a respondent to custody.[39] But in the present case, it would be an extraordinarily serious step - given her intellectual impairment - to deny the respondent her freedom after the sentencing judge saw fit to release her into the community.[40]

[2] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association.

[3] Crimes Act 1958, s 38(1). The maximum penalty is 25 years' imprisonment.

[4] False imprisonment is a crime at common law. By virtue of s 320 of the Crimes Act 1958 it has a maximum penalty of 10 years' imprisonment.

[5] Crimes Act 1958, s 74. The maximum penalty is 10 years' imprisonment.

[6] Trewin pleaded guilty to two charges of false imprisonment and two charges of theft.

[7] On 20 May 2019, the sentencing judge imposed two further conditions, requiring the respondent to attend SOATS (Specialised Offender Assessment and Treatment Service) and not associate with either of the victims for a period of two years.

[8] Trewin was sentenced to a CCO of 18 months' duration, with similar conditions.

[9] In Trewin's case, the judge declared that he would have sentenced him to nine months' imprisonment.

[10] The non-parole period was set at six months following a further sentence hearing on 20 May 2019.

[11] Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366 and 367.

[12] Citing DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128] (Ashley, Redlich and Weinberg JJA) and DPP v Macarthur [2019] VSCA 71, [60] (Ferguson CJ, Kaye and Weinberg JJA).

[13] Counsel relied on a number of 'comparable' sentencing cases (so-called): DPP v Davis [2017] VSCA 341; DPP v Moore [2009] VSCA 264; DPP v Patterson [2009] VSCA 222; and Ryder v The Queen [2016] VSCA 3.

[14] Citing Leeder v The Queen [2010] VSCA 98, [39] (Maxwell P).

[15] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA) ('Verdins').

[16] Citing DPP v Patterson [2009] VSCA 222, [30] (Maxwell P, Redlich JA and Vickery AJA); Pato v The Queen [2011] VSCA 223, [20] (Hansen JA, Harper JA agreeing).

[17] DPP v Zhuang [2015] VSCA 96; (2015) 250 A Crim R 282, 295-300 [39]-[50] (Redlich, Priest and Beach JJA) ('Zhuang').

[18] DPP v Oksuz [2015] VSCA 316; (2015) 47 VR 731, 771 [165], 781 [214(c)] (Kyrou JA, Redlich JA agreeing).

[19] DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 410 [59], 418 [88] (Warren CJ, Redlich and Kaye JJA).

[20] From a bare reading of the transcript, it is not entirely clear that the prosecutor did in fact concede that a CCO was open.

[21] See [34] above.

[22] In oral submissions, counsel cited DPP v Mwamba [2015] VSCA 338, [165] (Priest, Beach and Kaye JJA).

[23] Sentencing Act 1991.

[25] DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153, 168-69 [49]-[50]. (Footnotes as in reported version.)

[26] [Practice Note SC CA 1 (30 January 2017), cll 7.2 and 7.5, set out with emphasis.]

[27] Pesa v R [2012] VSCA 109 at [10]-[13] per Maxwell ACJ and Hansen JA; Director of Public Prosecutions v Terrick (2009) 24 VR 457; [2009] VSCA 220 at [5] per Maxwell P, Redlich JA and Robson AJA. Compare Director of Public Prosecutions (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22 at [37] per Priest and Beach JJA, and King AJA.

[28] Dinsdale v R (2000) 202 CLR 321; 175 ALR 315; [2000] HCA 54, 325-6 [6] (Gleeson CJ and Hayne J).

[29] See Elias v R (2013) 248 CLR 483; 298 ALR 637; [2013] HCA 31 at [27] per French CJ, Hayne, Kiefel, Bell and Keane JJ; Dalgliesh at [4] per Kiefel CJ, Bell and Keane JJ; at [79] per Gageler and Gordon JJ.

[30] See R v Pham (2015) 256 CLR 550; 325 ALR 400; [2015] HCA 39 at [28] per French CJ, Keane and Nettle JJ; Dalgliesh at [59] per Kiefel CJ, Bell and Keane JJ. See also Director of Public Prosecutions v Zhuang (2015) 250 A Crim R 282; [2015] VSCA 96 at [39]-[49]; Director of Public Prosecutions v McInnes [2017] VSCA 374 at [75].

[31] See footnote 13 above.

[32] See Zhuang, 292-5 [29]-[37].

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

[34] 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.

[35] 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.

[36] 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.

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

[38] See CMB v A-G (NSW) [2015] HCA 9; (2015) 256 CLR 346, 358-60 [33]-[36].

[39] R v Soo (Unreported, Court of Appeal, Tadgell, Phillips and Kenny JJA, 30 October 1997); DPP v Waack [2001] VSCA 108; (2001) 3 VR 194; DPP v Joseph [2001] VSCA 151; DPP v BW [2007] VSCA 171; DPP v Wilson [2000] VSCA 112; (2000) 1 VR 481; DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, 530-1 [26]; DPP v Mwamba [2015] VSCA 338.

[40] We note that the respondent's solicitor, in an affidavit sworn by on 5 August 2019 - received by the Court with respect to the issue of the residual discretion - confirms that the respondent has fully complied with her CCO.