DPP v Davis [2017] VSCA 341

CRIMINAL LAW - Sentencing - Sentencing hearings - Expert evidence - Mental functioning of offenders - Expert reports relied on by defence - No objection by prosecution - Prosecutor later sought leave to cross-examine expert - Importance of cross-examination where prosecutor disputes expert opinions or their factual foundations - Need for timely service of expert reports - County Court of Victoria, Practice Note PNCR 1-2017 - Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, 1 July 2017 [8.1].

1 On 16 February 2017 Christopher Davis ('CD') pleaded guilty to four charges of rape. He was sentenced on 18 May 2017 as follows:[1]

Rape [Crimes Act 1958 s 38(1)]

2 On 15 June 2017, the Director of Public Prosecutions filed a Notice of Appeal against the sentence. The only ground of appeal was the ground on which a Director's appeal invariably rests, namely, that the sentences imposed were manifestly inadequate. As this Court explained in Director of Public Prosecutions v Karazisis,[2] success on this ground depends on showing that it was not reasonably open to the sentencing judge to impose the sentence which she did if proper weight had been given to all of the relevant sentencing factors. This ground invokes the residuary category of error in House v The King.[3]

3 As will appear, the defence relied on extensive expert evidence concerning various impairments of CD's mental functioning said to have been operative at the time he committed these offences. On the basis of that evidence, the judge concluded that the principles summarised in R v Verdins[4] were enlivened.[5] Specifically, her Honour found that CD's impaired mental functioning lessened his moral culpability;[6] 'modified' the applicability of general deterrence;[7] and reduced the need for denunciation.[8]

4 For reasons which follow, we have concluded that it was not reasonably open to the judge to impose the sentence which she did, notwithstanding the findings she made as to the mitigating effect of CD's impaired mental functioning. This was very serious offending and, on a proper analysis of the circumstances, those matters in mitigation were deserving of only moderate weight. As will appear from the proposed resentencing, however, we are satisfied that the appropriate sentence in this case must be materially lower than it would have been had the offences been committed by someone without CD's disabilities.

5 We would therefore allow the appeal, set aside the sentence imposed and resentence CD as follows:

Rape [Crimes Act 1958 s 38(1)]

6 CD and the complainant (M) met at work in 2012. Through M, CD met another woman (J), with whom he commenced a relationship.[9]

7 On 16 May 2015, M went to J's home for dinner and drinks, arriving at approximately 6:30 pm. J, her children and CD were all present when M arrived. M brought with her 12 cans of bourbon and cola to consume during the night. J and CD had started drinking before she arrived. At approximately 8:00 pm, they went and purchased a 700 mL bottle of whisky before returning to the house.

8 At approximately 11:00 pm, J was struggling to stay awake so she went to bed. At some time between 11:30 pm and midnight, CD offered M a cigarette. She had two drags of the cigarette, which made her feel sick, dizzy, and as if she might pass out. M decided to go to bed in the queen-sized swag that had been set up for her on the floor of the lounge room. M fell asleep immediately, fully dressed and wearing her shoes.

9 During the night, M was woken by CD who was between her legs licking her vagina. His tongue went down between the lips of her vagina and then back up to her clitoris (Charge 1). M was groggy, confused by what was happening, and lay still. CD then inserted his fingers into M's vagina, moving them in and out while still performing oral sex on her (Charge 2).

10 CD then inserted at least one of his fingers into M's anus, causing her physical pain. CD moved his finger or fingers in and out, before taking them out completely (Charge 3). CD then lay on top of M and tried to penetrate M's vagina with his penis, pushing around the opening and between the lips of her vagina. CD could not penetrate M's vagina any further, pulled back, and edged away from her (Charge 4).

11 M started to fully wake up. She was confused and shocked. She realised that her shoes were off and her jeans and underwear had been removed from her left leg and were down around her right knee. Her belt had also been undone. M rolled to her right side and kicked CD away with her legs. She put her underwear and pants back on. M and CD had a brief conversation, in which CD stated that he thought she was J.

12 M went back to sleep. A short time later, she woke again to find CD lying beside her. He started to apologise and said that J could not find out about what had happened. M told CD to get out and he left. M fell asleep but was again woken by CD, who was apologising and talking about not telling J. M again told him to leave. She was still feeling alcohol-affected and kept falling asleep. CD woke her on a further three or four occasions, trying to talk about what had happened. M told him to leave her alone and that she did not want to talk about it.

13 The following day, M spoke to J but did not tell her about what had happened with CD. She remained at the house until around 2:00 pm, before dropping into a friend's house on her way home. M said to this friend that she was 'not sure if it really happened' or if she had imagined it, but 'something was not right'. This friend believed something sexual might have occurred and took M to the Goulburn Valley Base Hospital in Shepparton.

14 M underwent a forensic medical examination. A sample was obtained from the inner hip area of M's underwear. A DNA profile was obtained which matched the DNA sample taken from CD.

15 On 21 May 2015, M conducted a pretext phone call to CD from the Shepparton Police Station. During their conversation, CD stated that he had thought he was 'just hugging' M. He admitted that he was on medication and said that he should not have been drinking. CD then stated that he believed he was actually hugging J and that, once he realised it was M, he had gone to bed.

16 The matter resolved into a plea of guilty on 13 September 2016. On the plea in mitigation, counsel for CD disavowed any claim of mistaken identity.

17 The defence relied on two expert reports. Given the centrality of this evidence, both to the plea and to the appeal, it is necessary to set out some lengthy extracts from the reports.

18 The first report was from Ms Carla Lechner, a clinical psychologist. Ms Lechner summarised her opinion in these terms:

1. Mr Christopher Davis aged 48 years, is before the Court pleading guilty to charges of sexual penetration, offences that occurred in May 2015. The facts of this case are known to the Court, with this report focussing on Mr Davis from a clinical perspective. I note that he has no prior history of offending apart from driving matters. Mr Davis presents with multiple and complex psychological issues. He fulfils the criteria of a number of diagnoses, including Alcohol Use Disorder (DSM 5) - in early remission, Major Depression (DSM 5) and Post-Traumatic Stress Disorder (DSM 5). He does not present with symptoms of a psycho-sexual disorder. Whilst Mr Davis has no clear memory of that night and his actions, he accepts responsibility for his behaviour, expressing disgust and appropriate victim empathy. His offending appears to be out-of-character for him and is most likely the result of his level of intoxication, possibly mistaken identity and certainly poor judgment and decision-making. Mr Davis is best described as a 'low' risk of re-offending. He presents with a positive prognosis.
2. The third of seven children, Mr Davis'[s] father died when he was aged seven years and he was raised in a stable single-parent home. He has always had learning difficulties and struggled at school. It is not clear if this was due to constitutional difficulties (current testing indicates that he has a 'mild intellectual disability') or if he suffered some degree of brain injury after being hit by a swing. Nonetheless, he remained at school until Year 10 level (repeating one year) and to his immense credit, has been gainfully employed for most of his adult life, in a casual part-time capacity. Mr Davis has been exposed to immense stress and loss. This has included - i) the death of his father; ii) the death of two close school friends; iii) the death of two employers; iv) the death of his older brother and v) the death of a stranger that he witnessed. He has been significantly traumatized by witnessing that murder, as well as being exposed to his brother's multiple suicide attempts. He has never received professional help for his distress and has 'self-medicated' with alcohol, this in turn leading to both a substance use problem as well as inadvertently aggravating his underlying psychological problems.
3. At interview Mr Davis impressed as cognitively and emotionally immature. He was also highly anxious and depressed in demeanour. He achieved scores in the 'extreme' and 'severe' range on the Beck Depression and Beck Anxiety Inventories respectively. His depression seems to pre-date his involvement in this matter, relating to the significant losses that he has experienced throughout his life. Further cognitive testing indicates that his intelligence is in the 'mildly disabled' range, with particular deficits noted in his comprehension/expressive skills and logical sequencing skills. He demonstrates a concrete and utilitarian rather than conceptual thinking style. His cognitive deficits would be further exacerbated by substance intoxication and/or a high level of emotional arousal.
4. Whilst he does not have a clear recollection of the night, Mr Davis accepts responsibility for his actions and expresses regret, disgust and shame. He is also remorseful in relation to the victim. Mr Davis currently presents as a 'low' risk of re-offending as measured by the SVR-20. He has no symptoms of a psycho-sexual disorder.
5. Clearly the consequences of his offending are a matter for the Court to determine. From a purely psychological perspective, Mr Davis would benefit from treatment services as outlined above upon his release from prison. He also needs some mood stabilization, particularly in light of his chronic suicidal thoughts. He is a vulnerable person in light of his cognitive deficits and psychological fragility. He will therefore need both monitoring and support in a custodial setting.

19 The second report was from Associate Professor Warrick Brewer, a clinical neuropsychologist. The relevant parts of Professor Brewer's opinion were as follows:

He suffers Post-Traumatic Stress Disorder associated with exposure to multiple traumatic events including a murder by stabbing (when he was aged 16 years), and the repeated suicide attempts and eventual death of his brother. Mr Davis's offending occurred in the further and more acute context of alcohol abuse, which from the available evidence appears to have fulfilled, in part, the role of self-medication of his chronic emotional distress: onset of his alcohol abuse was from mid-adolescence. Mr Davis also has a history of mood instability involving anxiety and depression and associated suicidal ideation, and where a more serious attempt resulted in a psychiatric inpatient admission around 18 months ago. His personality reflects features of immaturity, disorganisation, and aspects of emotional developmental arrests (e.g. poor judgement, egocentricity, concrete thought style and limited ability to appreciate the impact of his behaviour on others). Moreover, during early childhood, Mr Davis had sustained a minor closed head injury following an incident where he had been hit by a swing when he was aged 18 months. He is currently treated with anti-depressants and is supported in psychological counselling. His criminal history is unremarkable apart from various driving offences prior to his recent charge.

Relevant developmental risk factors include a genetic risk for psychosis, the emotional and cognitive impact of neurological insult from his closed head injury during early childhood, - possibly associated with delayed walking, loss of a significant attachment (father) at the age of 7 years, reduced learning ability and the emotional impact of requiring special school education, signs of early childhood anxiety, exposure to bullying, the emotional and traumatic impact of the tragic death of his peers at early adolescence, along with that of his brother's schizophrenia that crystallised into him witnessing his brother's more concerted efforts at suicide from Mr. Davis's mid-late adolescence. Mr Davis nevertheless remained functional to the extent of maintaining stable employment and further, was reportedly sufficiently organised to benefit from non-verbal visuo-constructive instruction in both his employment and in the acquisition of aspects of his trade training.

Mr Davis's current cognitive profile occurs in the reported context summarised above and reflects a man whose overall IQ falls within the mildly impaired range. This result leaves him eligible for Disability Support Services. His visuo-perceptual reasoning ability falls within the borderline range as does his verbally-mediated reasoning, problem-solving and recall of information. His performance at the current assessment was commensurate with that expected from one with his estimated premorbid (prior to the functional impact of the compounding impact of his alcohol abuse, his anxiety and depression) IQ which is estimated to have fallen within the borderline range. These findings are also broadly consistent with those found recently by Ms Lechner and reflect long-standing compromise of verbally-mediated learning and information processing.

...

In concert with the neuropsychological profile reported above, the overall picture is consistent with a mild-moderate acquired brain injury in this clinician's opinion. The available evidence suggests that a key trigger for the same was his early childhood head injury that typically compromised verbal learning and reasoning, and then maturation of the same from late childhood, despite remedial intervention. The further impact of poor regulation of attentional processes following his head injury should not be under-estimated. However, the most compelling aspects of the above history from the available evidence includes the distracting impact of emotional distress on Mr Davis's already compromised learning, both as a result of his father's early death and from the impact of living with a brother who suffered schizophrenia.

...

From the available reports, it appears that Mr Davis was intoxicated at the time of his offending. It is reasonable to expect that Mr Davis would be more vulnerable to the impact of alcohol relative to his peers by virtue of his acquired brain injury to a mild-moderate extent in this clinician's opinion. Consequently, his problems with higher-level socio-emotional organisation and function, reduced self-monitoring, poor judgement and reasoning skills, compromised appreciation of the impact of his behaviour on others, egocentricity, and concrete thought style would have been further exacerbated whilst under the influence of alcohol. As such, he has limited tools to regulate his emotional impulses. He does not impress as having a fundamentally violent or malicious intent, and rather, appears somewhat emotionally naïve and immature. The combination of alcohol and medication at the time of the offending would be expected to exacerbate Mr Davis's vulnerabilities even further, however there is insufficient evidence available to this clinician to determine either alcohol blood level and/or medication compliance at that time.

...

With respect to Mr Davis's offending, the overall weight of evidence suggests that it is not so much his cognitive vulnerabilities per se that have contributed to his poor judgement and reasoning and hence to his criminal offending. Rather, it is the compounding impact of his alcohol abuse and his mood instability on his initially compromised socio-emotional maturation and intellectual disability that leaves him behaving much like that expected from an early adolescent as detailed above. However, the impact of his cognitive vulnerabilities should not be under-estimated here.

This clinician is satisfied from the available evidence that Mr Davis's underlying socio-emotional vulnerabilities stemming from his ABI (emotional developmental arrest, concrete thought style, poor appreciation of the impact of his behaviour upon others, or upon long-term outcomes, his compromised emotional regulation, and his disorganised personality) were even further compromised by virtue of the extent of his alcohol use and his mental illness at the time of committing his offence. His alcohol use here refers both to the impact of his chronically accumulated use and to his more acute use at the time of his offending, although there is no objective evidence such as blood-test results for example to confirm the extent of the [latter].

20 Both reports were tendered without objection. The prosecutor did not seek leave to cross-examine either expert. Defence counsel then read lengthy extracts from each report to the sentencing judge, before referring to the decision of this Court in Director of Public Prosecutions v O'Neill[10] and submitting that:

• CD suffered from a 'quite extreme' impairment of mental functioning;
• there was a causal connection between his inability to reason and the offending conduct; and
• his moral culpability was 'at the low end'.

21 The prosecutor's submission in response was that the first limb of Verdins, concerning moral culpability, was not enlivened.[11] Counsel submitted, correctly, that the decisions of this Court on that aspect of Verdins have consistently required the demonstration of a 'realistic connection', or causal link, between the impairment of mental functioning and the offending.[12] It was submitted that the offending conduct should be seen to have been deliberate and persistent, and that this was inconsistent with what was said in the reports about the effects of CD's intellectual disability.

22 The judge then informed counsel that she would have CD assessed for suitability for a CCO. At that time, as her Honour was informed, the sentencing option of a combination sentence permitted the imposition of a term of imprisonment of up to two years together with a CCO. The plea hearing did not resume until more than two months later, however, by which time amending legislation had come into force limiting the custodial element of a combination sentence to 12 months.[13]

23 Her Honour indicated that she did not have available to her a transcript of the earlier hearing and would need further submissions from both sides as to how it was said that the Verdins principles did, or did not, apply. Defence counsel reiterated his submission that the Verdins principles were enlivened, contending that the report of Professor Brewer established a causal link between CD's condition and the offending. Counsel referred to the statement in the concluding paragraph of that report that CD's

underlying socio-emotional vulnerabilities stemming from his [acquired brain injury] ... were even further compromised by virtue of the extent of his alcohol use and his mental illness at the time of committing his offence.

24 The prosecutor responded by drawing attention to the part played by alcohol in the events which occurred. She submitted that the offending was not spontaneous but premeditated. At that point, her Honour asked the prosecutor whether, since she appeared to be disagreeing with Professor Brewer's opinions, she should have cross-examined him on his report. The following exchange took place:

Prosecutor: [P]erhaps Mr Brewer should have been cross-examined at the time of the plea, Your Honour. If Your Honour - given that this is such a crucial issue - if Your Honour wanted to have Mr Brewer called, I would certainly cross-examine him on these matters. In my submission, this really forms the crux of the defence plea, and ...

Her Honour: Well, I've just accepted what Mr Brewer said, because it was not really challenged.

Prosecutor: Well, it's a matter for Your Honour, and if I can have an indication from [defence counsel] about when Mr Brewer is available, then ...

25 There being no objection from defence counsel, arrangements were made to have Professor Brewer attend for cross-examination. We pause to point out that it is always open to the prosecution, when an expert report of this kind is relied on by the defence, to seek leave to cross-examine the expert. For obvious reasons, that course should be taken in any case where the Crown wishes to test, or contest, any of the opinions expressed or their factual foundations. We note that the Practice Note on Expert Reports for Sentencing Hearings, which came into force on 1 July 2017, has established a timetable for the serving of reports designed to facilitate this occurring.[14]

26 In his evidence in chief, Professor Brewer confirmed the following aspects of his opinion, namely that CD was suffering from a mental illness at the time of the offending and that the resulting impairment of mental functioning:

• would have affected his ability to make calm and rational choices;
• would have impaired his clear thinking at all times; and
• would have affected his ability on this occasion to appreciate the wrongfulness of his conduct.

27 Defence counsel noted Professor Brewer's description of CD's alcohol use, both his 'chronically accumulated use' and 'his more acute use at the time of his offending'. Counsel then asked Professor Brewer to disregard the effect of alcohol on the night of the offence. Professor Brewer agreed that, regardless of his alcohol consumption, CD's 'various vulnerabilities' would have led him to be 'impaired in his ability to make calm and rational choices' and would have affected 'his ability to appreciate the wrongfulness of his conduct'.

28 In cross-examination, the prosecutor drew attention to Professor Brewer's statement that CD had 'limited tools to regulate his emotional impulses', and asked whether the offending could be said to be the result of an emotional impulse. Professor Brewer answered that CD's 'motivated behaviour is poorly regulated behaviour and is exacerbated ... by the impact of alcohol'.

29 Professor Brewer accepted that CD's subsequent, repeated apologies to M, and his repeated urging that M should not tell J what had happened, showed 'a recognition of wrongdoing on his part'. The prosecutor then put to Professor Brewer that:

At least in that moment then, it's fair to say that he appreciated [the] consequences of his actions.

Defence counsel objected that it was an unfair question. Her Honour upheld the objection, saying:

Well it's the timing of it which makes it unfair, because the time for the recognition of the wrongdoing is beforehand, not afterwards.

30 With great respect, the judge was wrong to disallow the question. The witness had already given evidence, in chief, that CD's impairments would have affected his ability 'to appreciate the wrongfulness of his conduct on this occasion'. This was obviously a matter of great significance to the sentencing decision. It was therefore both necessary and appropriate for the prosecutor to draw attention to CD's post-offence conduct and to ask the expert to confirm that, at least at that stage, he did appear to have appreciated that what he had done was wrong.

31 This was squarely relevant, because CD's appreciation of the wrongfulness of his actions so soon after the commission of the rapes necessarily invited the inference that he had had the same appreciation at the time - only shortly before - when he was undressing M and then engaging in the successive acts of penetration.[15] It was crucial for the judge to be able to assess for herself whether, and to what extent, CD had been impaired at that time in his ability to understand that what he was doing was wrong.

32 The prosecutor also sought to explore the significance of CD's intoxication. Professor Brewer accepted that his intoxication would have affected his behaviour but maintained that CD would have had 'a reduced capacity for reasoning' independently of the alcohol. The prosecutor then put to Professor Brewer that it was unclear to what extent his intellectual disability had contributed to his offending. The response was:

All we can say with more certainty is that his intellectual disability has contributed in some way to the offending ...[16]

33 In concluding submissions, the prosecutor conceded that principle 5 in Verdins was applicable, that is, that a term of imprisonment might weigh more heavily on CD than on an offender who did not have his disabilities.[17] Otherwise, counsel submitted, the principles did not apply because there was not the requisite connection between his condition and the offending. For his part, defence counsel maintained that, on the evidence, the judge should find that CD's impaired mental functioning had:

• affected his ability to appreciate the wrongfulness of his conduct; and/or
• obscured his intent to commit the offences; and/or
• impaired his ability to make calm and rational choices at the time of the offending.[18]

34 Referring to the victim impact statement from M, her Honour said:

The complainant has clearly been devastated by the offences committed against her, and is having enormous difficulty in getting on with her life. She writes that she was unable to continue to work and as a result has now reduced financial means, which affect her and her children. Following the emotional upheaval caused in her life, and the very difficult period that she has gone through, I note that she has now obtained alternative employment and it is to be hoped that her situation is now better than it was when she swore her victim impact statement.[19]

35 As to the offending itself, her Honour noted that CD had not disputed any of the allegations made against him. She continued:

You have no memory of what actually occurred. You were heavily under the influence of alcohol, as, it would appear, was the complainant and the owner of the house. This is clearly very serious offending.[20]

36 The judge noted CD's personal history, as set out in Ms Lechner's report. She noted that he had had severe learning difficulties when growing up but that, despite his 'mild' intellectual disability, he had been in gainful employment as a casual or part-time employee for most of his adult life.[21] She noted that his life had been 'punctuated with losses' and that he had been particularly affected by the mental illness of one of his brothers.[22] He had also been exposed to a number of violent deaths. Her Honour said:

You have never received any treatment for these losses and merely used alcohol in order to assist you.[23]

Her Honour noted Ms Lechner's opinion that CD was a low risk of sexual offending and continued:

However, you do meet the criteria of major mental illness with symptoms of alcohol-use disorder. In relation to the latter, I note that you have ceased to use alcohol, and at the time of her report [Ms Lechner] indicated that you had been abstinent for some six months.[24]

37 Her Honour then referred to Professor Brewer's report and said:

The report confirms that your intellectual ability is in the mildly impaired range but with a slightly higher score than that obtained by Ms Lechner. Professor Brewer also reports that you would be more vulnerable to the impact of alcohol than your peers because of your acquired brain injury, to a mild to moderate extent. He indicated that you did not impress as having any violent or malicious intent, but exhibited, rather, emotional immaturity. Your vulnerabilities, poor judgment and reasoning skills would be exacerbated by the combination of alcohol and medication that you had apparently used on the night of this offending.

Professor Brewer gave evidence via Skype on 17 of May 2017 and I accept the following in relation to your mental impairment and its direct connection to your offending:

(1) it would impair your capacity for calm, rational decision making;

(2) it would affect your ability to recognise the wrongfulness of your conduct on the occasion of the offending for which I sentence you.

In relation to your use of alcohol there are two types of effect:

(1) you suffer the effect of accumulated alcohol use over your years of consumption, that is since you were a teenager;

(2) you were affected on that night by your acute use of alcohol when you committed the offences.

Professor Brewer's evidence was that alcohol use has a compounding effect on your mental condition. You have a cognitive vulnerability deriving in part from your mental condition and in part from the acquired brain injury. You have various vulnerabilities which, regardless of the alcohol, would affect your knowledge and appreciation of the wrongfulness of your conduct and would obscure your intention to commit the criminal offences.

I accept the evidence of Professor Brewer and I find on the balance of probabilities that, combined with your long term traumas which have plagued your life, your acquired brain injury and the diagnosed mental impairment, the principles of Verdins are enlivened.

Therefore in considering your moral culpability I have concluded that it is reduced by these factors I have just referred to. In particular, those which were expressed by Professor Brewer.[25]

38 Her Honour considered that specific deterrence was 'not a large factor', given that CD had given up the use of alcohol, had pleaded guilty and had expressed remorse.[26] As to general deterrence, her Honour said:

I regard that requirement, although generally of extreme importance in sentencing, as being modified in your case. I do not find you an appropriate vehicle for general deterrence given your disabilities and diagnoses that I have already described.[27]

I am also required to denounce your offending on behalf of the community and I do so. The excessive use of alcohol and the actions of those acting under the influence of alcohol have long been condemned by the community. Such actions cause havoc in the lives of the offenders, their victims, families and friends. I also moderate that denunciation in view of your particular disabilities.[28]

40 Her Honour said that she viewed the plea of guilty, and CD's ready acceptance of M's version of events, as an expression of remorse and as being of importance in her sentencing decision.[29] Her Honour then said:

I have determined that a term of imprisonment is appropriate in all the circumstances.

The submissions and concessions by counsel that a combined sentencing involving imprisonment and a community corrections order is appropriate and given that, I have also have taken that into consideration, and to that end I had you assessed for a community corrections order at the behest of counsel for the defence.

I have reached the conclusion, on weighing all the matters, that a term of imprisonment is the only appropriate sentence that must form part of the sentence, and I have further taken the view that although there are four charges, they are all part of an ongoing incident and I have therefore framed my sentence accordingly with limited cumulation for each charge.[30]

41 Rape is a very serious offence, as the maximum of 25 years fixed by Parliament indicates.[31] As Winneke P said in R v Mason:

It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.[32]

42 As the judge said, CD's offending was 'clearly very serious'.[33] First, he took advantage of a sleeping woman and 'pursued his own sexual gratification at a time when she could neither protest nor resist'.[34] Secondly, the offending involved a serious breach of trust. M was at the home of her close friend (J). CD was a friend whom M was entitled to trust. She was in a secure environment, and was entitled to feel entirely safe when she went to sleep.

43 Thirdly, as was emphasised both on the plea and on this appeal, this was not a case of a single impulsive act. On the contrary, this was sustained, deliberate, persistent conduct. CD had first undressed M and then engaged in a series of penetrations, over some minutes. Fourthly, as the judge noted, the offending had had a devastating effect on M, and had created enormous difficulties for her subsequent life.

44 The Director's submission referred to Hasan, where this Court was also concerned with the rape of a sleeping victim. That offending involved a single act of penetration but had the additional aggravating factor that the offender had ejaculated inside the victim, creating the risk both of unwanted pregnancy and of sexually transmitted disease, which had caused the victim great anxiety.[35] The offender was sentenced to six years' imprisonment. The Court said:

Were it not for current sentencing practice, the aggravating features of the appellant's conduct would, in our view, indicate that a sentence of six years' imprisonment was merciful, even when full account is taken of his previous good character and his plea of guilty.[36]

45 The submission for the Director was that, in the present case, each charge of rape merited 'a significant term of imprisonment and an appropriate measure of cumulation'. Accepting that the acts of penetration occurred 'as part of a single occasion', the Director nevertheless submitted that the orders for cumulation needed to recognise that 'each act of rape was a distinct act'.

46 Moreover, as the Director pointed out, CD fell to be sentenced as a serious sexual offender on charges 3 and 4. By force of s 6D(a) of the Sentencing Act 1991, the judge was therefore bound to regard the protection of the community as the principal purpose for which sentence was imposed. Further, s 6E required that, subject to any direction to the contrary, there be total cumulation of those sentences on the others. The Director pointed out that the sentencing judge made no reference to either s 6D or s 6E.

47 Counsel for CD conceded, quite properly, that if it had not been for the significant mitigating effects of his impaired mental functioning, this was 'a sentence which would not be given' for four charges of rape. Unsurprisingly, almost the entirety of the written case filed on CD's behalf was concerned with the implications of the expert evidence.

48 Before turning to consider the effect of that evidence, it is necessary to refer to the Director's belated - and unsuccessful - attempt to add a ground of specific error regarding her Honour's findings in that respect.

49 We set out earlier her Honour's findings as to the significance of CD's impaired mental functioning for her assessment of his moral culpability, the applicability of general deterrence and the need for denunciation. In his written case dated 15 June 2017, the Director conceded that these findings were reasonably open to the sentencing judge on the evidence before her. As there set out, the Director's argument was that the judge had placed too much weight on CD's cognitive difficulties and mental health issues and, as a result, had imposed a manifestly inadequate sentence.

50 The written case for CD (filed 11 September 2017) placed heavy reliance on the fact that the Director was not challenging the judge's findings about the applicability of Verdins principles. As counsel for CD argued, both in writing and at the hearing, it was those findings which both explained and justified what was acknowledged to be, on its face, a very low sentence for serious sexual offending of this kind.

51 In the course of oral argument, however, senior counsel for the Director sought leave to withdraw the concession made in the written case (that the Verdins findings were reasonably open on the evidence) and to amend the Notice of Appeal to add a ground of specific error. The Director now wanted to argue that the relevant findings were not reasonably open on the evidence. In other words, the foreshadowed contention was to precisely the opposite effect of the concession made in the written case.

52 After hearing argument, we refused the application for leave to withdraw the concession and add the new ground. We concluded that it was simply too late for the Director to seek to change his position so fundamentally on the critical issue in the appeal. As the timeline indicates, the Director had had almost two months within which to review his position once the written case for CD was filed. A principal purpose of the early exchange of written cases is to enable parties to review their positions well ahead of the appeal hearing. No change of position having been indicated, counsel for CD were entitled to assume that the appeal would be conducted on the basis of the written cases as exchanged.

53 Sentencing judges are frequently called on to deal with expert evidence concerning impaired mental functioning, and to determine its significance for sentencing purposes. This means, of course, that the Director should be astute to identify, and argue, specific error of this kind if the view is formed that findings based on such evidence were not reasonably open. A Director's appeal is an ideal vehicle for the ventilation of such questions.

Impaired mental functioning and self-induced intoxication

54 One of the difficulties confronting the sentencing judge was that CD's cognitive and psychological profile had a number of different facets. The reports recorded variously:

• a suspected acquired brain injury, the result of being hit by a swing as a child;
• a mild intellectual disability;
• post-traumatic stress disorder 'associated with exposure to multiple traumatic events';
• scores in the 'extreme' and 'severe' range on the Beck Depression and Beck Anxiety Inventories respectively;
• mild levels of paranoid ideation, and mild-moderate 'attenuated psychotic features'; and
• 'moderate levels of endorsement of unstable and disorganised personality features'.

55 As a result, the reports were lengthy and dense and, moreover, included a good deal of technical language. And some of the opinions expressed were - perhaps of necessity - quite imprecise. Thus, Professor Brewer said that it was

not so much his cognitive vulnerabilities per se that have contributed to his poor judgment and reasoning and hence to his criminal offending. Rather it is the compounding impact of his alcohol abuse and his mood instability on his initially compromised socio-emotional maturation and intellectual disability that leaves him behaving much like that expected from an early adolescent as detailed above. However, the impact of his cognitive vulnerabilities should not be under-estimated here.

cognitively and emotionally immature. He was also highly anxious and depressed in demeanour. ... [H]e demonstrates a concrete and utilitarian rather than conceptual thinking style. His cognitive deficits would be further exacerbated by substance intoxication and/or a high level of emotional arousal.

56 In these circumstances, it was a task of very real difficulty for the judge to determine which of the numerous aspects of CD's mental functioning described in the reports were relevantly operative at the time of the offending and, more particularly, to determine whether such feature(s) had any 'realistic connection' to the offending. In our respectful view, the very imprecision of the opinions should have signalled to her Honour that it would be difficult to form firm opinions on those questions.

57 It is true, as the judge noted and as counsel for CD emphasised on the appeal, that Professor Brewer in his oral evidence confirmed that CD's 'condition' would probably have affected his ability to reason clearly and to appreciate the wrongfulness of what he was doing. But, unsurprisingly, Professor Brewer was unable to state with any confidence how significant that impact might have been. As noted earlier, his report said that it was 'not so much his cognitive vulnerabilities per se' that had contributed to the offending. And his answer under cross-examination was as follows:

All we can say with more certainty is that his intellectual disability has contributed in some way to the offending ...[37]

58 This evidence needed to be assessed against what was known about the circumstances of the offending. First, as the prosecution repeatedly pointed out, CD's conduct was evidently purposeful, deliberate and persistent. Moreover, he had pursued a rational course of action, consistent with his objective of having sex with a sleeping woman. As noted earlier, he must have realised that he needed to act quietly, and carefully, while undressing her, so as not to wake her. He clearly knew exactly what he was doing.[38]

59 Secondly, his subsequent behaviour - of repeatedly waking M, apologising to her and urging her not to tell J - showed that he had a very real appreciation that what he had done was wrong. The most obvious inference was that he had had a similar appreciation at the time of the offending. Certainly, there was nothing in the expert evidence to suggest that his moral awareness was apt to come and go over a short period. If any explanation was to be found for the apparent absence of moral scruples at the time CD undressed and raped M, it was surely to be found principally in his state of intoxication, to which we now turn.

60 Counsel properly conceded that CD had consumed 'a fair quantity of alcohol' on this night. So much was apparent from the (agreed) facts that J and CD had already been drinking when M arrived and that the three had then gone to purchase a bottle of whisky. Further, Ms Lechner's report recorded CD telling her that 'he could have consumed a bottle (750 mL) of rum on the night of these offences'.

61 Clearly, therefore, CD was heavily intoxicated at the time he committed these offences, as the sentencing judge noted in her reasons.[39] She later said:

The excessive use of alcohol and the actions of those acting under the influence of alcohol have long been condemned by the community. Such actions cause havoc in the lives of the offenders, their victims, families and friends.[40]

Sadly, excessive alcohol consumption is all too often a precursor to sexual offending.

62 The submission for CD relied on Professor Brewer's opinion regarding the 'compounding impact' of CD's alcohol abuse on his intellectual disability. According to the submission, the effect of this evidence was that - far from displacing or reducing the significance of the intellectual disability - the intoxication magnified its effect and, as a result, increased its significance as a mitigating factor.

63 We would reject that submission. Such a conclusion could only have been arrived at if the expert evidence had stated unequivocally that, in the circumstances of this case, CD's self-induced intoxication had had no real independent impact on his decision-making and conduct, but had functioned purely as a catalyst, heightening the (involuntary) effects of his disability. This would have been a highly unusual conclusion. It is, of course, notorious that intoxication exacerbates emotions such as anger and jealousy but that does not mitigate any resultant offending.[41]

64 This issue, of the concurrent operation of intoxication and mental impairment, creates particular difficulties for sentencing judges. But it is not new. In Wright v The Queen,[42] for example, the offender suffered from schizophrenia and had been experiencing psychotic symptoms at the time of the offending. The sentencing judge concluded, however, that the cause of the offending was not the underlying mental illness (which had previously been well controlled by medication) but his taking of methamphetamine instead of his prescribed medication. Thus, although there was active psychosis at the time of the offending, the judge was satisfied that it was the intoxication resulting from the drug taking which was causally linked with the offending. This Court upheld the judge's conclusion that, as a result, there was no reduction in moral culpability.[43]

65 In the present case, as we have said, there was nothing to displace the usual inference that CD's intoxication had had a relevant causative effect. Taking account of the expert evidence, and being mindful of the application of the principles in Verdins, we nevertheless consider that CD's disinhibited yet purposeful pursuit of his own sexual gratification was in good part the result of his excessive alcohol consumption.

66 It follows, in our view, that in the circumstances of this case, the mitigating effect of CD's intellectual disability and other emotional vulnerabilities was moderate. Any reduction in moral culpability could not have been significant; CD remained to a large degree an appropriate vehicle for general deterrence in respect of offending of this kind; and there was still a real need for denunciation of his conduct.

67 With respect, the sentence which her Honour imposed was not commensurate with the gravity of the offending and must be seen to have significantly overvalued the mitigating effect of CD's cognitive and emotional limitations. A combination sentence, involving a term of imprisonment of no more than 12 months, was simply not within the range reasonably open. On the contrary, as the Director submitted a significant term of imprisonment was called for. The orders for cumulation needed to reflect the separate acts of rape and - in relation to charges 3 and 4 - the statutory presumption of cumulation.

68 In the event that the Court decided that her Honour's sentence was manifestly inadequate, counsel for CD submitted that we should exercise our residual discretion[44] to dismiss the appeal, for three reasons: first, delay - approximately two and a half years has passed since the offending; second, CD has almost completed the sentence of imprisonment imposed on him by her Honour; third, the maximum period of imprisonment that was open to her Honour in combination with a CCO was originally two years but, by the time her Honour came to sentence CD, it had been reduced to 12 months as a result of an amendment to the Sentencing Act 1991.

69 It is for the Crown to negate any reason why the Court's residual discretion should not be exercised[45] but none of the reasons advanced on behalf of CD, whether considered separately or in combination, warrants non-interference with the sentence. The Director did not accede to the imposition of a combined sentence. Nor has the Director been dilatory in the prosecution of the appeal. The respondent has not started the non-custodial portion of the combined sentence and, even if a sentence of imprisonment of two years had been available to her Honour at the time of the imposition of the combined sentence, such a sentence would still have been manifestly inadequate.

70 We would therefore resentence CD as set out above.

[1] The judge did not make a declaration for the purposes of s 6AAA of the Sentencing Act 1991.

[2] [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127].

[3] Ibid [125]-[126]; see House v The King [1936] HCA 40; (1936) 55 CLR 499.

[4] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[5] DPP v Davis (Unreported, County Court of Victoria, Judge Cotterell, 18 May 2017) [28]. ('Reasons').

[9] The abbreviations are used for ease of reference, not for anonymity.

[10] [2015] VSCA 325; (2015) 47 VR 395 ('O'Neill').

[11] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 274-5 [23]-[26] ('Verdins').

[12] See O'Neill [2015] VSCA 325; (2015) 47 VR 395, 414-5 [74] and the cases there cited.

[13] Sentencing Act 1991 s 44(1) as amended by Sentencing (Community Corrections Order) and Other Acts Amendment Act 2016 s 12.

[14] County Court of Victoria, Practice Note PNCR 1-2017 - Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, 1 July 2017, [8.1]. See also Supreme Court of Victoria, Practice Note SC CR 7 - Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, 1 July 2017, [8.1].

[15] See, eg, Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51, 57 [30].

[17] See Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [28], [32].

[18] See O'Neill [2015] VSCA 325 [75].

[25] Ibid [24]-[29] (emphasis added).

[31] Crimes Act 1958 s 38; see also DPP v Avci [2008] VSCA 256; (2008) 21 VR 310, 318 [26].

[32] R v Mason [2001] VSCA 62 [8].

[34] Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, 37 [37] ('Hasan').

[37] See above [32].

[38] Cf Carroll v The Queen [2011] VSCA 150 [22].

[39] See above [35].

[41] Hansan [2010] VSCA 352; (2010) 31 VR 28, 33 [21].

[42] [2015] VSCA 333.

[44] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658-9.

[45] CMB v Attorney-General (NSW) (2015) 256 CLR 346, 359 [34].