DPP v Moore [2009] VSCA 264

1 The facts have been fully set out in the reasons for judgment of Lasry AJA. We agree with his Honour that the Director should not be permitted to rely on a specific error in the sentencing judge's application of the principles in R v Verdins,[1] because such an error was not alleged in the grounds of appeal.

2 In our opinion, however, the ground alleging manifest inadequacy has been made out. The sentence imposed on Mr Moore is so disproportionate to the objective gravity of the offence as to shock the public conscience and to indicate error in principle. We take that view after making due allowance for his personal circumstances, his reduced mental capacity, the delay in his prosecution, the fact that he pleaded guilty and the principle of double jeopardy.

3 The learned sentencing judge recognised that the respondent's Aboriginal background had contributed to his disadvantaged circumstances. In Director of Public Prosecutions v Terrick,[2] this Court summarised the principles relevant to the sentencing of Aboriginal offenders as follows:

The same sentencing principles apply irrespective of the offender's race. Thus, Aboriginal offenders are not to be sentenced more leniently than non-Aboriginal persons on account of their race.

In sentencing persons of Aboriginal descent, the court must avoid any hint of racism, paternalism or collective guilt. At the same time, the sentencing court is bound to take into account 'facts which exist only by reason of the offender's membership of an ethnic or other group.'

When applying sentencing principles, which are common to all Victorians, a different outcome may result for an Aboriginal offender if it is shown that 'mitigating factors in the background of the offender, or [in the] circumstances of the offence, occurred or had an impact peculiarly so because of the Aboriginality of the offender'.[3]

4 The learned sentencing judge made the following remarks about the respondent's personal circumstances:

You are now a 24 year old Aboriginal man, presently in remand at the Metropolitan Remand Centre. The Forensicare report of Chris Drake and particularly the tendered letter of your aunt, Helen Atkinson, state a deprived and damaged background in the very extreme sense.

Your early life was marked by your parents' alcoholism, drug use and the violence in the home. Your mother's alcohol use during pregnancy has caused you alcohol foetal syndrome. You were taken from your parents by your aunt when about two years. You rarely saw your mother after that. Your father died when you were 13 or 14. Your aunt describes you as devastated by his decline and death. Many other members of your family have also suffered early death. That tragically has continued into recent times. Your intellectual disability, largely caused by the alcohol foetal syndrome, made school increasingly difficult. By mid teenage you had slid into alcohol and drug use, including inhalants.

5 The detailed report provided by the psychologist, Dr Drake said that the respondent's parents:

... were violent and his mother drank excessively, resulting in Mr Moore developing foetal alcohol syndrome. His parents were unable to care effectively for him in his early years and he was placed in the care of his aunty, who effectively became his mother figure. Although this worked well initially, it is possible that the death of his father and increasing awareness and frustration arising from its underlying cognitive deficits became more problematic in his early teens, which likely played a role in the onset of behavioural problems and his criminal career. This has largely continued unabated.

6 The fact that Mr Moore's childhood was blighted by his exposure to violent adults who abused alcohol, explains to some extent his own tendency to abuse alcohol and drugs, which in turn contributed to his offending behaviour.

7 In addition to taking account of Mr Moore's shockingly deprived childhood, s 5(2)(d) of the Sentencing Act 1991 required his Honour to consider 'the offender's culpability and degree of responsibility for the offence.' Clearly the respondent's intellectual disability and Attention Deficit Hyperactivity Disorder were relevant to his moral culpability, since they affected his capacity to behave rationally, and to control his behaviour.[4]

8 Mr Moore's cognitive difficulties also required the judge to modify the application of the principle of general deterrence. As Kirby P said in Champion:[5]

Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates ... It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given.

9 Although the sentencing judge was required to give considerable weight to the respondent's disadvantage and his limited mental capacity, it was necessary for him to balance these matters against other relevant sentencing considerations. These included the gravity of the offence, general and specific deterrence, community protection and the respondent's prospects of rehabilitation.

10 On the appeal it was submitted by counsel for the Director that having regard to all of these factors, the sentence imposed was outside the range of discretionary sentences available to the sentencing judge. In reply, counsel for the respondent emphasised that the learned sentencing judge had taken a sympathetic view of the personal circumstances of the respondent. These included delay in bringing the matter to trial and the respondent's 'markedly damaged personal background'. On this basis, the learned sentencing judge found that '[the respondent's] circumstances are unusually deprived and, in the real sense, tragic' and that 'they should attract a merciful sentence'.

11 We did not understand counsel for the respondent on the plea to be submitting that the learned sentencing judge should invoke a residual discretion on the basis of mercy[6] to impose a sentence that was outside the applicable range. Rather, it was submitted that his Honour's findings as to mitigation ought to be given the greatest possible weight. As we understand his Honour's sentencing remarks he intended a merciful sentence that fell at the very lowest end of the sentencing range which he considered available.

12 On the appeal, counsel for the respondent referred the Court to a number of analogous cases where sentences for rape were similar to or lower than that imposed upon the respondent in the present case.[7] The chosen authorities were referred to at length by counsel as establishing, it was said, a range that was considerably above the sentence imposed in the present case.

13 As has been said many times by this Court, reference to comparable cases can be of only limited assistance.[8] Sentences are not precedents to be applied unless otherwise distinguishable.[9] That is not to say that a general overview of sentences imposed on offences of a similar character does not play a part in informing the instinctive synthesis.[10] But the Court must, be careful to ensure that cases referred to do indeed constitute a relevant practice. Even then, current sentencing practices are only one factor that a court is required to consider under the Sentencing Act 1991.

14 On the appeal, counsel for the Director referred the Court to a number of cases including Maynard,[11] R v Hyland,[12] DPP v Avci[13] and R v Hakeem.[14] In Maynard the Court considered a quite similar submission on a Director's appeal brought against the sentences imposed on a count of rape and aggravated burglary. There, the respondent had sought to rely upon a series of cases that were said to demonstrate that the sentence imposed at first instance was not manifestly inadequate. This submission was rejected. The Director's appeal was allowed and on the count of rape it was held that the sentence of 4 years' imprisonment was manifestly inadequate, and the respondent was re-sentenced to 6 years and 6 months' imprisonment. In relation to the mitigatory features in support of the respondent the Court said:

The youth and deprived background of the respondent is, of course, a significant matter. However, these factors cannot overwhelm the sentencing process in circumstances of very serious offences. Consideration of current sentencing practices reveals that significant sentences have been imposed upon youthful offenders who commit serious rapes. In R v JED a 15 year old boy who had a deprived background and who pleaded guilty to the rape of an 83 year old woman was sentenced to seven years' imprisonment on a count of rape. Likewise in R v Hakeem a 19 year old youth, who also had a deprived background and who had pleaded guilty to the rape of a 53 year old woman was sentenced to seven years' imprisonment on the count relevant to that offence. Indeed in each of those cases the sentence imposed may well have been moderated by reason of the number of counts upon which each prisoner was being sentenced. Making proper allowance for the youth of the respondent and the other mitigating factors to which reference has been made, we consider that the sentence imposed on the count of rape was so inadequate as to demonstrate plain error in sentencing principle. The sentence imposed was only 16% of the available maximum. It does not accord with current sentencing practice for such a serious example of the offence.[15]

15 As is demonstrated by the reasons in Maynard the applicable range of discretion will be informed by all of the factors of the case which include the nature and gravity of the offending. Of the offence of rape we refer to the passage from Maynard which Lasry AJA has set out in his reasons.[16]

16 Counsel for the respondent sought to downplay the relevance of the authorities relied upon by the Director. By way of submission he made two complaints. First he submitted that when the respondent was sentenced in August 2008, the sentence imposed on him reflected current sentencing practices. The range identified by the Crown, and in particular that identified in Maynard, were said to be the result of an upward movement in sentencing for the offence of rape. Second, he submitted that those cases are distinguishable from the present circumstances on the basis that none involved the same considerations of mercy.

17 These submissions cannot be accepted. In Maynard,[17] as in the present case, the cases relied upon by counsel for the particular respondent failed to establish that there was a 'sentencing practice' that indicated that the original sentence was within range. Further, in Maynard this Court observed that the median sentence for a single count of rape in 2007 was 7 years' imprisonment. In 2008 it was 5 years' imprisonment.[18] A table showing sentences imposed for a single count of rape between January 2007 and November 2008 is, further, annexed to the recent decision of this Court in DPP v Patterson.[19]

18 We therefore do not, consider that the cases referred to by counsel for the respondent constituted a relevant 'practice' for the purposes of the Sentencing Act 1991. Nor did they establish the relevant 'range' for the purpose of this case.

19 It remains, then, to consider the submission that the consideration of mercy had the consequence that the sentence imposed was, although low, within the applicable range of discretion. As we have said, considerations of mercy need to be weighed alongside all other sentencing factors in order to provoke the instinctive synthesis that discloses the relevant range. The fact that an offence is a serious one does not, of course, deprive the Court of the capacity to exercise mercy in exercising its sentencing discretion.[20] In R v Kane[21] the Full Court said that:

Cases frequently occur where a court is justified in adopting a course which may bear less heavily on the accused than if he were to receive what is rather harshly expressed as being his just desserts. But mercy must be exercised upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment. If a court permits sympathy to preclude it from attaching due weight to the other recognised elements of punishment, it has failed to discharge its duty.[22]

20 Mercy must be considered alongside all of the relevant circumstances. As was submitted by Counsel for the Director, there is no doubt that this was a very serious offence. The attack was a violent one. The appellant invaded the victim's home in the early hours of the morning and raped her while she was in an advanced state of pregnancy. Not surprisingly the victim was terrified and the rape has had lasting effects on her. The respondent's impaired mental functioning could not substantially eliminate his responsibility for the offending.

21 The respondent's parting statement that 'everyone fucks you' suggests that he regarded her as nothing more than an object for his sexual use. A letter tendered on the plea by Counsel for the respondent, also cast aspersions on the character of the complainant and 'her dark past'. Along similar lines, the respondent told Dr Drake that the victim was 'a slut' and, that he had believed she wanted to have sex. His lack of insight into the effect of the rape on the victim may to some extent reflect his intellectual disability. But it is also relevant to the risk that the respondent may commit violent offences (including sexual offences) in the future.

22 In that context we note that Dr Drake reported that Mr Moore had:

... developed a pattern of opportunistic sexual behaviour, often in the context of parties and drug intoxication. This likely increased his vulnerability to engaging in illegal sexual behaviour, the consequences of which have been exacerbated by his propensity to violence.

23 Dr Drake considered that the respondent's low level of cognitive functioning and his tendency to abuse drugs would make it difficult to address his offending behaviour. It was therefore necessary for his Honour to give considerable weight to specific deterrence.

24 Although this is the first time the respondent has been convicted of a sexual offence, he has a history of convictions for aggravated burglary and for offences involving violence. He has already received two Community Based Orders, one of which required him to comply with a Justice Plan. The learned trial judge found that the respondent's prospects for rehabilitation were not good. Under s 5(1)(e) of the Sentencing Act 1991 his Honour was required to consider the protection of the community. Accordingly his Honour had to have regard to the respondent's propensity to act violently and to the consequent threat he posed to other members of the community.

Where the offender has prior convictions, such that considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.[24]

26 As is frequently said, the ground of manifest inadequacy does not admit of much argument.[25] Giving full weight to the respondent's deprived background and other mitigatory circumstances, it cannot be said that the sentence was within range. In our opinion the sentence of 4 years' imprisonment fell outside the range of sentences that could be reasonably be imposed at the time the respondent was sentenced, having regard to the gravity of the offending and the risk to the community posed by the offender. It appears that his Honour, for reasons of compassion, gave too much weight to the offender's deprived and tragic circumstances.[26] Further, his Honour's emphasis on mercy led him to give

insufficient weight to the gravity of the rape, the respondent's poor prospects of rehabilitation and the risk he posed to the community of him re-offending.

27 If the Court were to re-sentence without taking into account the principle of double jeopardy applicable on a Director's appeal, and, to give maximum allowance to the respondent's personal circumstances (as the sentencing judge intended), we consider that the offence of rape would have warranted a term of 6 years and 6 months' imprisonment and a total effective sentence of 7 years and 6 months' imprisonment would have been appropriate.

28 For the above reasons we consider that the Director's appeal should be allowed. Having regard to the principle of double jeopardy, we would re-sentence the respondent as follows:

• Count 1 ( aggravated burglary) - 3 years' imprisonment
• Count 2 (rape) - 5 years' imprisonment

29 We would direct that 6 months of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 2, giving rise to a total effective sentence of 5 years and 6 months. We would fix a non-parole period of 4 years.

30 Although a longer term of imprisonment may have some deterrent effect on Mr Moore, we recognise that it may not assist him to stop his alcohol and drug abuse or address his violent behaviour unless it is accompanied with intensive support because of his intellectual disability and his consequent difficulty in controlling his behaviour. We support Lasry AJA's remarks on that issue and note that it would be in the interests of the community and the respondent for such support to be provided while he is in gaol and particularly in the event that he is released on parole.

31 On 6 December 2007 the respondent, Rodney Daryl Moore, then 24 years of age, pleaded guilty in the County Court, sitting at Mildura, to one count of aggravated burglary contrary to s 77(1)(b) of the Crimes Act 1958 and to one count of rape contrary to s 38(1) of the Crimes Act 1958. The maximum penalty for both offences is 25 years' imprisonment. The respondent admitted prior convictions for offences committed over a period of 9 years which included burglary, theft, aggravated burglary on three occasions, intentionally causing serious injury, assaulting police and similar or related offences. He had not previously committed any sexual offences.

32 After hearing submissions from the prosecutor and the plea on behalf of the respondent on 3 June 2008, on 7 August 2008 the respondent was sentenced as follows. On count 1, the count of aggravated burglary, he was sentenced to 3 years' imprisonment. On count 2, the count of rape, he was sentenced to 4 years' imprisonment. The sentencing judge directed that 6 months of the sentence on count 1 be served cumulatively with the sentence on count 2 which resulted in a total effective sentence of 4 years and 6 months' imprisonment. His Honour fixed a period of 2 years and 6 months to be served before the respondent would be eligible for release on parole.

33 This is an appeal by the Director of Public Prosecutions pursuant to s 567A of the Crimes Act 1958, the grounds of which are as follows:

1. The individual sentences imposed in respect of count 1 (aggravated burglary) and count 2 (rape), the total effective sentence imposed and the non-parole period fixed were all manifestly inadequate in the circumstances.

Particulars

In fixing a term of 3 years imprisonment in respect of count 1, a term of 4 years imprisonment in respect of count 2, a total effective sentence of 4 years and 6 months imprisonment and a non-parole period of 2 years and 6 months imprisonment, the sentencing Judge -

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b) failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to sufficiently protect the community from the offender;

(e) failed to have sufficient regard to the maximum penalty prescribed for the offences;

(f) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offences;

(h) failed to have sufficient regard to the impact of the offences on the victim;

(i) failed to have sufficient regard to aggravating factors of the offending, and in particular -

• the home invasion involved in the offending,
• the heightened risk to the victim given the advanced stage of her pregnancy,
• the vulnerability of the victim given that she was 8 months pregnant,
• the impact of the offending on the victim.
• the fear instilled in both the victim and the wider community as a consequence of the offending,
• the relevant prior convictions of the offender; and

(j) gave too much weight to mitigating factors concerning the offender, in particular -

• the plea of guilty,
• the delay, and
• the personal background of the offender.

1. The orders for cumulation between counts 1 and 2 were inadequate in all the circumstances.

Particulars

In directing cumulation of 6 months imprisonment of count 1 upon the sentence imposed for count 2, the sentencing Judge failed to properly apply the principle of totality in that the total effective sentence does not reflect the totality of the offending conduct and was not 'just and appropriate' in all of the circumstances.

34 As can be seen, there are a number of matters identified as 'particulars' for both grounds 1 and 2. It should be noted that it was not until submissions were developed on behalf of both the Director and the respondent that the real issue on this appeal was identified. In essence, the written outline of submissions filed on behalf of the Director simply asserted that the sentence was manifestly inadequate given the objective circumstances of the offending. The written submissions on behalf of the respondent placed heavy reliance, as one might have expected, on the mitigatory circumstances which were relevant to the imposition of the sentence. Until the hearing of the appeal there was no assertion of specific error by the sentencing judge or its consequences. I will return to these matters during the course of dealing with the arguments of counsel.

35 The principles which apply to prosecution appeals against sentence are well established. In R v Clarke,[27] Charles JA identified five rules which would apply to appeals of this kind suggesting that such appeals should only be brought in the '"rare and exceptional case" to establish some point of principle'.[28] His Honour stated that a court of criminal appeal dealing with any such appeal against sentence is not hearing the matter anew and is not entitled to substitute its own opinion for that of the sentencing judge: rather, a court of criminal appeal should only interfere in the case where there is 'manifest inadequacy' or where it was shown that the sentencing judge fell into 'material error of law or fact'. Included as one of Charles JA's identified rules was the requirement that double jeopardy be given recognition by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.[29] Finally, there is an overriding discretion which may lead a court of criminal appeal to decline to intervene even if it concludes that error has been shown. Such a discretion might be referrable to the conduct of the Crown at the original sentencing proceedings. As I will shortly deal with, there is an aspect of this case that is relevant to that last observation in connection with the position taken by the Director concerning the sentencing judge's treatment of what might be described as 'the Verdins issue'.

36 The two offences were committed by the respondent in the early hours of 10 January 2006 in the home of the victim. The respondent was 21 years of age at the time. The victim - a 25 year old woman - lived alone in that house, and at the time of the offences was eight and a half months' pregnant. In an attempt to keep cool that particular evening, the victim had placed a mattress on the floor of the loungeroom of the premises and was sleeping naked on the mattress.

37 At about 4.00 am, the victim awoke to the noise of the respondent banging on the front door of the premises. The respondent then forced the door open, causing damage as he did so, and went into the loungeroom of the house. As that was happening, the victim was endeavouring to call police but the respondent grabbed the phone from her and threw it out of her reach. He then pushed her onto the mattress and by the use of force and from behind penetrated her vagina with his penis and then ejaculated. As the respondent was leaving he said to the victim, 'Everyone fucks you'.

38 After his departure, the complainant contacted the police who attended and commenced an investigation. When initially questioned by police on 15 March 2006, the respondent denied having had sexual intercourse with the victim. At the respondent's committal proceeding at the Mildura Magistrates' Court on 20 September 2006, the respondent was committed to stand trial and pleaded not guilty. After several intervening hearings, the respondent was released on bail on 2 July 2007. During the Mildura sittings of the Court in December 2007 the matter was listed but a difficulty arose because the respondent had withdrawn his counsel's instructions. Ultimately, on 6 December 2007, the matter was resolved and the respondent pleaded guilty to the two counts for which he was sentenced. The matter was adjourned until June 2008.

39 In the course of the later plea counsel for the accused provided the sentencing judge with a brief report from Dr Michael Moynihan of Swan Hill and a detailed letter from an aunt of the respondent, Helen Atkinson dated 3 May 2008. The letter from Ms Atkinson portrayed a tragic history of the respondent's deeply dysfunctional family and deprived background. The respondent was one of seven siblings, all of whom were fostered out because the respondent's father knew that the children could not be looked after properly. The family had at some stage lived along a river in tents, and then later in caravans. The respondent's mother was apparently a heavy drinker who also took drugs including Valium and Serapax whilst pregnant with the respondent. After the respondent and his sister went into the care of Ms Atkinson, the respondent's mother failed to make any contact with him, however the respondent's father maintained a close bond with those two children. When the respondent was aged approximately 13 or 14 years, his father passed away leaving the respondent devastated. By this stage, the respondent was already struggling with secondary school work, and then began to get into trouble with the law. At age 17, the respondent and his girlfriend had become parents to a son, and at the time of Ms Atkinson's writing, the respondent had a further two sons and one daughter from that relationship as well as another baby son from another relationship. Finally, Ms Atkinson detailed the number of deaths of close family members that the respondent had endured generally as well as those since he had been in custody. Suffice it to say, they were numerous.

40 The report from Dr Moynihan referred to a diagnosis of foetal alcohol syndrome and Attention Deficit Hyperactivity Disorder ('ADHD'). It also referred to drugs that the respondent had used and a brief treatment history in 2002 and 2005.

41 After the plea had been completed a report was provided from psychologist Chris Drake of Forensicare dated 16 July 2008. In this quite detailed report Dr Drake stated that the respondent had told him that he was affected by alcohol and had been 'chroming' at the time of the offences. The reports both indicated that the respondent had been previously diagnosed as suffering from foetal alcohol syndrome, however little detail of this diagnosis was disclosed, other than the fact that it was caused by the respondent's mother's excess consumption of alcohol during her pregnancy with the respondent. Both reports noted that the respondent had abused a number of drugs including cannabis and heroin and that he was thought to suffer from ADHD.

42 Dr Drake's report also canvassed the respondent's cognitive functioning in some detail, concluding amongst other things that 'his overall intellectual functioning was within the Intellectually Disabled range, below the lowest two per cent of the adult population' then later '[p]sychometric assessment suggested Mr Moore's cognitive functioning is comparable to a same aged person with an intellectual disability.'

43 During the plea counsel for the respondent informed the sentencing judge that the respondent was in receipt of a disability pension. His Honour was told the respondent had some five children by two relationships and had found employment in the railways. Counsel accepted that a sentence of imprisonment 'significantly beyond' what he had already served (pre sentence detention was determined at 308 days) was required.[30]

44 In the course of sentencing the respondent, the sentencing judge identified the relevant features of the offence and observed that a punishment proportionate to the circumstances was required. He referred to the matters which he considered would cause a reduction in such a sentence, namely: (1) the respondent's plea of guilty; (2) the respondent's mental disability on the basis of which he apparently applied principles formulated by this Court in R v Verdins;[31] (3) the delay of some two and a half years between attending and sentencing; and (4) the unusually deprived and damaging background that the respondent had suffered involving parental drug and alcohol abuse, violence, estrangement from parents and the death of many members of his family including his father when aged 13 years. Alcohol and drug use had commenced for the respondent by his mid-teenage years. His Honour considered this combination of circumstances should 'attract a merciful sentence'. I will return later to the application of the principles of Verdins in this case.

45 His Honour referred to the respondent's 'severe' problems with unresolved grief, loss and associated anger as well as drug and alcohol abuse. He noted that the respondent's prospects for rehabilitation were not good. His Honour also noted that he had requested a report from Intellectual Disability Services which was aimed, among other things, at establishing that the respondent could be assisted with his condition in custody. The report was never provided but his Honour proceeded to sentence anyway.

46 A substantial part of the submissions argued on behalf of the Director before us was that the sentence imposed was manifestly inadequate. In part it was put that was because the learned sentencing judge had been overborne in his reasoning by the evidence of the respondent's mental state and dysfunctional background. In particular, it was submitted that it was necessary to establish a link between an intellectual disability such as would attract the application of the principles in Verdins and the offending itself. That link, it was submitted, was missing. In essence, therefore, it was put that the sentencing judge made a sentencing error in that the analysis contemplated by this Court in Verdins was not properly conducted and that the mental state of the respondent was given more weight than was deserved in the circumstances of this case. This particularisation of the manifest inadequacy ground was not put in the Notice of Appeal.

47 Senior counsel on behalf of the respondent, on the other hand, argued that the circumstances permitted the respondent to be sentenced on the basis of the applications of the Verdins principles. Furthermore, counsel complained that if findings of fact or specific legal errors other than the manifest inadequacy of the sentence were to be relied upon in their appeal, they should have been identified in the Notice of Appeal and that had not occurred. I will return to this.

48 As is well known, in Verdins this Court reformulated the principles which had been identified in R v Tsiaras.[32] The Court in its judgment noted first that:

Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances - that is, at the time of the offending or in the lead-up to it - or is likely to affect him/her in the future.

49 The Court then identified six ways in which temporary or permanent impaired mental functioning could be relevant to sentence. The principles identified are as follows:

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

(2) The condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served.

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

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

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

(6) Where there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this factor would tend to mitigate punishment.

50 In dealing with the manner in which impaired mental functioning may be capable of reducing moral culpability, for example, the Court said:

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of -

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.

As we have said, this is not to be taken as an exhaustive list.[33]

51 In my opinion, the application of the Verdins principles does require an analysis by a sentencing judge based on evidence of the variety of issues and consequences of impaired mental functioning. It may be that the effect of a particular impaired mental state is relatively minimal either as to the circumstances of the commission of an offence and the moral culpability of the offender or its likely effect on the offender when serving his or her sentence. On the other hand it may be able to be identified as lying at the root cause of the conduct. In addition, as the Court said in Verdins if either general or specific deterrence is to be moderated then the nature and severity of the symptoms and their effect on the mental capacity of the person being sentenced must be evaluated.

52 It would have to be acknowledged that the treatment of these principles by the sentencing judge was very brief and much is to be inferred rather than read in his Honour's reasoning. Intellectual disability is a recognised condition to which Verdins applies. In these circumstances the link between impaired cognitive skills and judgement and the offending is made out. His Honour had the following information before him relevant to the principles to which I have referred in paragraph [49] and which I am prepared to infer he evaluated in performing an analysis of the type to which I have referred above with a view to the merciful sentence he imposed on the respondent:

• the diagnosis of the respondent with foetal alcohol syndrome;

• the potential complication of the respondent suffering with ADHD;

• the respondent's intellectual functioning was within the intellectually disabled range and that is, in part, consistent with the syndrome to which I have referred;

• the respondent's diagnosed condition had given rise to problems with emotional regulation leading to a violent propensity;

• any intervention to reduce the risk of relapse would be complicated by his underlying cognitive defects; and

• the respondent's full scale intelligence quotient ('IQ') was measured and reported as 63.

53 Furthermore, I am persuaded by the submissions of senior counsel for the respondent that if such a complaint is to be made about the reasoning of the sentencing judge in this case - that is, a complaint of specific error in the applications of the principles to which I have referred, such a complaint should have taken the form of a specific ground of appeal. To conclude otherwise would be unfair both to the respondent and to the sentencing judge: His Honour might have provided a report to this Court had he known this criticism was to be pursued. Senior counsel for the respondent relied on the recent judgment of the High Court in Carroll v R.[34] In that case in concluding that the NSW Court of Criminal Appeal had fallen into error, the Court said:

The Director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was 'manifestly inadequate', was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal.[35]

54 Likewise before us in this case, no case of specific error was alleged in this case. Rather the sole ground of appeal was manifest inadequacy of the sentence. Notwithstanding that, counsel for the Director sought to assert before us that the sentencing judge was in error in his application of the Verdins principles. No request was made by senior counsel to amend the grounds of appeal to reflect the submission of specific error.

55 In the course of his reply, senior counsel for the Director did not accept that the manner in which he had argued the appeal was not reflected in the grounds of appeal. In summary, he submitted the sentence was manifestly inadequate because the sentencing judge had given too much weight to the impaired mental state of the respondent and his background. As I endeavoured to point out to counsel, his submission had been somewhat more specific than that and argued that the sentencing judge was in error in the application of principles discussed in Verdins.

56 The application of the principles to which I have referred is complicated by the fact that the respondent has previous convictions for offences of violence as I have described, though not for sexual offences. The question is raised as to the extent which considerations of general and specific deterrence continue to be modified in such circumstances. Generally, of course, prior offending may demonstrate a deliberate disregard for the law and a continuing attitude of disobedience of the law.

57 As the High Court said in R v Veen (No 2):[36]

The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.[37]

58 Such an evolving background of offending would also be more relevant to the issue of rehabilitation where the prospects of it were significantly under the control of the offender and his or her attitude. However, in the case of a person with the kind of impaired mental functioning that the respondent in this case he could not be assumed to have linked this offence with earlier breaches of the law so as to demonstrate a conscious disregard for the community or for the law. Also, in the case of someone such as this respondent, his rehabilitation does not seem to me to be within his control without significant specialised assistance.

59 In my opinion, the other factors referred to in Verdins would also continue to apply. They would include the effect of the mental condition on the kind of sentence that was imposed and the conditions in which it was to be served and whether the sentence would weigh more heavily on the offender than it would on a person in normal health. Also, whether there was a serious risk that imprisonment would have a significant adverse effect on the offender's mental health.

60 As to the moderation of general and specific deterrence, in R v Ulla,[38] Eames JA (with whom Batt and Vincent JJA agreed) concluded that in a case of an offender aged 21 years who had pleaded guilty to handling stolen goods, two counts of armed robbery and one count of obtaining property by deception and who had an 'extraordinary' number of prior convictions:

His criminal history and intellectual disability suggests that any sentence is unlikely in itself to discourage the appellant from further offending, and there must also be limited value in sentencing him for purposes of general deterrence. Protection of the community must be an important consideration, however. These offences were indeed serious, and the judge rightly highlighted the victim impact statements, which demonstrated that the victims had continuing fear and anxiety, long after the immediate trauma had ceased.[39]

61 Eames JA concluded that the appellant's intellectual disability resulted in a moderation of specific and general deterrence notwithstanding his criminal history and the appeal against sentence was allowed.

62 In R v Imadonmwonyi,[40] this Court was concerned with an application for leave to appeal against a sentence for murder and intentionally causing serious injury. The victims of the attack were unknown to the applicant and no clear reason for it was established save that the two victims had been revving the engine of a car near where the applicant had been using a public telephone. In the particular circumstances of the case he had been sentenced to a hospital security order for 20 years with a non-parole period of 15 years. There was some history of prior offending which resulted in community based orders, intervention orders which were breached, assault and related matters connected with the applicant's mental illness of paranoid schizophrenia. In his judgement, Ashley JA (with whom Buchanan and Nettle JJA agreed) concluded that the applicant's mental illness was such as to reduce his moral culpability because it might be inferred that the attack he mounted was caused by his paranoia. General and specific deterrence might also be reduced in significance as sentencing considerations. Likewise the effect of the condition of the applicant at the date of sentence and the effect of the sentence on him compared with a person in normal health were relevant considerations. His Honour went on:

In all, the applicant's mental illness in some respects tended in favour of amelioration of sentence; whilst in other ways the kind of sentence which was imposed has been to his advantage. That takes me to what I consider to be the primary sentencing considerations in this case. As I said earlier, the applicant committed extremely serious acts of violence, and the jury found that he did so with the relevant criminal intent in each instance. The applicant's prior history of serious antisocial behaviour added to the gravity of the offences. That gravity was in my opinion a sentencing consideration of central importance. It called for the protection of the community in response to what the applicant had done.[41]

63 Ashley JA resolved the matter by concluding that the sentence which had been imposed was not outside the available range.

64 It would have to be accepted that in sentencing a person for violent offences where there is a prior criminal history and a mental impairment, the protection of the community becomes a relevant matter. Not, of course, to the point of permitting a sentence beyond what is appropriate for the crime but rather relevant as '... a material factor in fixing an appropriate sentence'.[42] However, that accepted, it is also appropriate to apply the Verdins analysis to an offender with intellectual impairment notwithstanding a history of relevant prior convictions. Short of indefinite incarceration of the offender, the various components in protecting of the community may not be straightforward. In such cases advancing the cause of protecting the community is more likely to be achieved by the intensive treatment and medication of the intellectual or mental impairment rather than prison confinement without such treatment. That is certainly what seems to be required in the case before us on the evidence available to the sentencing judge.

65 Whether the criticism of the sentence is based on specific error or the apportionment of too much weight to the impaired mental state and personal circumstances of the respondent, I am not persuaded by it.

66 I turn to consider whether the sentence was, at the time it was imposed, a sentence within the acceptable range. Before this Court, counsel debated at some length the question of the range of sentences which were applicable or appropriate to this offence. Both parties referred to similar cases in their efforts to establish that the sentence imposed was either outside the range in the case of the Director or within the range in the case of counsel on behalf of the respondent. As Redlich JA pointed out during argument, the effect of the submissions was to identify that the range of sentencing for this category of offences of rape and aggravated burglary at the time these sentences were imposed was very broad. Beyond that the comparisons were of limited utility. Indeed, the range established on the cases to which we were referred varied substantially.

67 The Director placed particular reliance on Maynard[43] and referred to R v Hyland,[44] DPP v Avci[45] and R v Hakeem.[46] The purpose of the review was to establish that by reference those cases, the sentence imposed in this case was inadequate such as to demonstrate error. With a view to that submission, in Maynard the Crown had appealed against sentence for offences contained in two presentments including the rape of a 15 year old girl at knifepoint, armed robbery, indecent assault, aggravated burglary. The sentencing judge imposed a sentence of 4 years on the count of rape, which the Crown submitted was manifestly inadequate. The respondent, aged 19 years at the time of the offences, had prior convictions for burglary, theft, arson and armed robbery. Ashley, Redlich and Kellam JJA took into account mitigating factors submitted on behalf of the respondent, including his youth and deprived background, however determined that the sentence of 4 years for the count of rape was so inadequate as to demonstrate 'plain error in sentencing principle ... [being] only 16% of the available maximum'.[47] Their Honours re-sentenced the respondent stating that a sentence of 8 years would have been appropriate on the count of rape under the circumstances of the offence (which included the fact that it was in public, the victim was a virgin, and the respondent had not used a condom), however taking into account the principle of double jeopardy, imposed a sentence of 6 years and 6 months on the count of rape.

68 In that case, a proposed second ground in the Director's Notice of Appeal was that to the extent the sentencing judge had regard to current sentencing practices in determining the sentence imposed on the count of rape, then those sentencing practices were inadequate. Ultimately, that ground was abandoned but the Director was permitted by the Court to amend the first ground by adding a particular that the sentencing judge 'placed too much reliance on current sentencing practice'.

69 The judgements of this Court in Maynard and also in DPP v Avci[48] appear to me to represent the contraction of the range of sentences which might be acceptably open for offences such as these as current sentencing principle now stands. The following passage from the judgment of the Court in Maynard highlights the point:[49]

The seriousness with which Parliament views the offence of rape is indicated by the fact that it has fixed a maximum penalty of 25 years' imprisonment. The maximum provides a yardstick for the exercise of the discretion by the judge and is one of the factors that the sentencing judge is bound to take into account under s 5 (2) of the Sentencing Act. The seriousness of the offence of rape was considered in DPP v Avci where Maxwell P with whom Buchanan and Redlich JJA agreed said:

'In his submissions, the Director rightly emphasised the fact that Parliament has fixed a maximum penalty of 25 years' imprisonment for rape. This is the highest maximum provided for by the Crimes Act. The fixing of such a high maximum reflects the community's abhorrence of this crime. As noted earlier, the Full Court in 1994 expressed the view that, in the 14 years which had passed since an earlier decision in R v Vaitos ('Vaitos'), community concern about 'the prevalence and seriousness of rape and like crimes' had undoubtedly hardened, and there was a greater need for salutary sentences to punish those who committed such crimes. Difficult though it is to generalise about community attitudes, I have little doubt that community concern about rape and like crimes, and the need for salutary sentences to punish and to deter, are stronger than ever.'

This point was forcefully made in 2006 by Vincent JA (with whom Buchanan and Neave JJA agreed) in DPP v FHS:

'The courts, when dealing with [rape] cases, must have regard to the vindication of the community's social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly, those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion ... [W]hen [these considerations] cannot be seen to be reflected in the responses of the courts, not only ... does the individual victim justifiably feel betrayed and devalued, but the criminal justice system itself fails to achieve its objectives.'

In the present case, the periods of imprisonment imposed for the respective rape offences were as follows: incident 2: 5 years, 5 years; incident 3: 7 years; incident 4: 6 years, 6 years; incident 5: 6 years, 10 years. A sentence of 5 years is only 20 per cent of the maximum. The amount of cumulation ordered was modest, given the separate criminality represented by each successive attack. In these circumstances, the Director might well have concluded - notwithstanding what the prosecutor had submitted on the plea - that the public interest required appellate scrutiny of all aspects of the sentence and not just the non-parole period.

70 On the other hand, senior counsel for the respondent sought to demonstrate that the sentence imposed in this case was within the range of sentences for these offences, accepting that in future that may not remain true. He began his analysis by pointing out that each of the cases to which the Director had referred were decided after the sentence in this case was imposed. He then highlighted the differences between each of those cases and this case by reference to the peculiarly adverse circumstances of the respondent and the expressed intention of the sentencing judge in this case to impose a sentence that was merciful. He then referred to R v Bastan,[50] R v Ahmed,[51] DPP v Daly[52] and DPP v McCloy.[53] Save for R v Bastan, each of the other cases was decided between 2004 and 2006. The point counsel sought to make about those cases is that in none of them did the combination of factors which applied to the respondent in this case apply and in no case was a merciful sentence sought. Despite that being the case, comparatively, the sentences in those cases demonstrated that the sentence in this case was within the acceptable range.

71 It is, I consider, sufficient to make two observations about the analysis conducted by counsel. First, as to the sentencing practices at the time of the imposition of the sentence on the respondent, the range of sentences which had been applied to offences such as these was very broad particularly in view of the maximum penalty. In my opinion, counsel for the respondent has demonstrated that the sentence imposed in this case was within a comparable range of sentences which had been imposed for these offences. I also consider that the unusual deprivation of background and mental state of the respondent is a significant distinguishing feature when the analysis of his circumstances is conducted. Second, particularly given the outcomes of the cases to which the Director has referred, it seems likely that were the respondent now being sentenced at first instance in accordance with current sentencing trends, a heavier sentence would be required to be imposed.

72 Particularly given the observations of this Court in Maynard to which I have referred, the sentence imposed by the sentencing judge in this case is not the sentence I would now impose dealing with the matter at first instance. These are serious offences and the circumstances of the offending is very serious for the reasons identified by the sentencing judge and relied upon by the Director before us. However, with some considerable hesitation, I have come to the conclusion that given the particularly unusual features of this case, the Director's appeal must fail. I have reached this conclusion for the following reasons.

73 First, whilst the reasoning of the sentencing judge as to the issue of the relevance and effect of the respondent's impaired mental functioning was brief to the says the least, I am not at all persuaded that the conclusion he came to was unable to be supported on the evidence available to him. I would add that during the plea and despite an enquiry from the sentencing judge as to the extent to which he could bring the intellectual disability of the respondent into account, the prosecutor did not seek to argue to the contrary of the sentencing judge's conclusions.

74 Second, it might well have been appropriate to have impugned both the evidence before the sentencing judge and the reasoning and lack of analysis on the issue of the impaired mental functioning of the respondent but in my view, if that was to occur it should have been a specific ground of appeal and presented as such. In the alternative, I am not persuaded that the weight apportioned to those matters by his Honour was excessive.

75 Third, I am not persuaded that the sentence imposed in this case was outside the range of sentences which, referring to the authorities decided at the time, were applicable to these offences. It was a very merciful sentence but particularly given the circumstances of the respondent, it could not be said to be so low as to represent manifest inadequacy at that time.

76 As to the issue of cumulation as between the two counts to which the respondent pleaded guilty, as Redlich JA noted in argument, the submission depends for its substance on the inadequacy of the individual head sentences. The point which the Director sought to make was that the cumulation of 6 months between counts 1 and 2 did not properly give effect to the totality of the offending conduct. I am not persuaded that the argument is made out given the circumstances in which the two offences were committed.

77 Before concluding this appeal I would make the following observations. First, since concluding my reasons, I have had the advantage of reading in draft the joint reasons of Neave and Redlich JJA. Their Honours have concluded that the sentence imposed on the respondent should be increased. I have reviewed my reasons in the light of their Honour's position but respectfully remain of the view that the appeal should be dismissed.

78 Second, I accept that the sentence imposed by the sentencing judge was a merciful one. There is room for mercy in the criminal justice system[54] and I consider the sentencing judge's sympathies were 'reasonably excited' by the circumstances of this case.[55] His Honour is an experienced judge and was an experienced criminal lawyer. However I also accept that the respondent is a person who, given the consequences of his extremely adverse and deprived history, carries a risk of further violent offending whenever he be released. If ever there was a case for the prison authorities to ensure that concentrated treatment and assistance which could avoid that eventuality is rendered to a prisoner, this is such a case. Mr Moore's life in the future depends on him being expertly assisted to deal with his history and his impairments and also that he be invested with the motivation to take up the value of that assistance. If that does not occur in a manner commensurate with his need, there will, sooner or later, and regardless of the outcome of this appeal, be adverse consequences.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] DPP v Terrick [2009] VSCA 220 ('Terrick').

[4] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 275; R v McIntosh [2008] VSCA 242, [84]-[104] (Dodds Streeton JA).

[5] (1992) 64 A Crim R 244, 254-5.

[6] As to the assumption that such a discretion exists, see for example R Fox, 'When justice sheds a tear: the place of mercy in sentencing' [1999] MonashULawRw 1; (1999) 25 Monash University Law Review 1; R v Miceli [1997] VSC 22; (1997) 94 A Crim R 327.

[7] R v Bastan [2009] VSCA 157; R v Ahmed [2006] VSCA 200; DPP v Daly [2004] VSCA 63; DPP v McCloy [2006] VSCA 99.

[8] DPP v Maynard [2009] VSCA 129 ('Maynard').

[9] R v Adajian [1999] VSCA 105, [28] (Callaway JA).

[10] R v Giordano [1998] 1 VR 544, 549 (Winneke P).

[11] [2009] VSCA 129.

[12] [2008] VSCA 220.

[13] [2008] VSCA 256.

[14] [2009] VSCA 131.

[15] [2009] VSCA 129, [41] (Ashley, Redlich and Kellam JJA).

[16] See [69] below.

[17] [2009] VSCA 129.

[19] [2009] VSCA 222.

[20] Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257, 268-9 (Windeyer J).

[21] [1974] VicRp 90; [1974] VR 759.

[22] Ibid 766 (Gowans, Nelson and Anderson JJ).

[23] [2009] VSCA 220.

[25] Director of Public Prosecutions v Martinez [2008] VSCA 165, [26] (Mandie AJA); R v King [2007] VSCA 38, [16] (Redlich JA).

[27] R v Clarke [1996] VICSC 30; [1996] 2 VR 520 (Charles JA).

[30] The respondent had been arrested and charged on 15 March 2006 and then released on bail on 1 December 2006. The respondent was remanded in custody on 3 June 2008 at the conclusion of the plea but before sentence was imposed.

[31] [2007] VSCA 102; [2007] 16 VR 269 ('Verdins').

[32] [1996] VicRp 26; [1996] 1 VR 398.

[33] Ibid [26] (Maxwell P, Buchanan and Vincent JJA).

[34] [2009] HCA 13; (2009) 254 ALR 379. See also R v Arvanitidis [2008] VSCA 189, [18] (Redlich JA).

[35] Ibid 381 (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[36] [1988] HCA 14; (1988) 164 CLR 465.

[37] Ibid 477 (Mason CJ, Brennan, Dawson and Toohey JJ).

[38] [2004] VSCA 130; (2004) 148 A Crim R 356.

[40] [2008] VSCA 135.

[42] R v Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 473.

[43] [2009] VSCA 129.

[44] [2008] VSCA 220.

[45] [2008] VSCA 256.

[46] [2009] VSCA 131.

[48] [2008] VSCA 256.

[49] [2009] VSCA 129, [38].

[50] [2009] VSCA 157.

[51] [2006] VSCA 200.

[52] [2004] VSCA 63.

[53] [2006] VSCA 99.

[54] See R v Miceli [1997] VSC 22; (1998) 4 VR 588.

[55] R v Osenkowski (1982) 30 SASR 212.