DPP v Patterson [2009] VSCA 222

Court of Appeal (Vic)|2009-10-02|Before: MAXWELL P, REDLICH JA and VICKERY AJA

R v Patterson (Unreported, County Court of Victoria, Judge Duckett, 2 May 2008).

CRIMINAL LAW - Appeal - Sentencing - Crown appeal - Rape, indecent assault - Intellectually disabled offender - Applicability of Verdins principles - Serious sexual offender - Use of violence - Prior convictions - Lack of insight, empathy, remorse - Community protection paramount consideration - Need for Court to assess risk to community - Adequacy of reasons for sentence - Sentence of three years four months, with minimum of two years, manifestly inadequate - Resentenced - (Vic)

1 On 2 May 2008, the respondent ('KP') was convicted after a trial on two counts of rape, one count of indecent assault and one count of recklessly causing injury. He was sentenced as follows:

KP was sentenced as a serious sexual offender on count 8.

2 The Director of Public Prosecutions now appeals against the sentence on the ground that the individual sentences, the total effective sentence and the non-parole period were all manifestly inadequate in the circumstances. Paragraphs (i) and (j) of the Director's notice of appeal contend that the sentencing judge:

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

the age of the victim,
the prior criminal history of the offender,
that the offending occurred whilst the offender was on bail for other offences,
the lack of remorse shown by the offender, and
the high risk of re-offending;

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

the mild intellectual disability of the offender,
the offender's lack of emotional or family support, and
the impact of a custodial term on the offender's mental health.

3 For reasons which follow, we would allow the appeal and resentence KP as set out in paragraph 53 below.

4 At the time of the offences, KP was 30 years old. He had been a boarder for about nine months in a house occupied by GS. The offending took place after GS had left the house to spend the rest of the weekend with his children. KP was alone in the house with GS's partner ('J'). J asked to borrow KP's mobile phone, in order to telephone a taxi to take her home.

5 KP's response was to attack J. He forced her skirt up, removed her underpants and forced her legs apart, causing bruising of her inner upper thighs (count 3, indecent assault). J screamed and resisted his attack. KP then penetrated her vagina with his finger (count 4, rape). J struggled and tried to force him away, but was unsuccessful. KP then tore a bra strap of her upper clothing and sucked and bit her left breast, causing extensive bruising (count 7, recklessly causing injury). Finally, KP penetrated J with his penis and ejaculated - partly inside her vagina and partly onto her stomach (count 8, rape).

6 Following the attack, KP told J several times that he was sorry for what he had done. She was, understandably, in shock. Two men came to the house and J left with one of them. She told him that she had just been raped by KP.

7 Prior to the offending, KP was registered as intellectually disabled.[1] He had been on a Disability Support Pension since leaving school.[2] The various reports provided by his counsel to the sentencing judge indicated that his intellectual disability was such that fewer than 10 per cent of individuals function at or below that level.[3] One report suggested that his general cognitive abilities were so low so as to be the same as or better than only one per cent of his peers.[4]

8 Some of the reports suggested that, in addition to his intellectual disability, KP had difficulty making judgments. In 2007, he was assessed by a consultant forensic psychiatrist at Forensicare, Dr Russ Scott, who noted in his report that: '[KP's] poor frustration tolerance and impulsivity are shown by a lack of forethought and failure to weigh costs and benefits of his actions.'[5] Dr Andrew Gibbs, senior neuropsychologist at the Royal Melbourne Hospital neuropsychiatry unit, said: 'There is a level of suggestibility whereby he could easily be lead by the wrong influences.'[6]

9 Following the current offences, Mr Jeffrey Cummins, forensic psychologist, reported in 2008 that KP:

does present as being compliant and easily led and naïve and in my opinion it is plausible he has managed to convince himself the victim was consenting when in fact she was not consenting. In my opinion and based upon his presentation at interview, it is quite possible he has difficulty accurately perceiving interpersonal cues.[7]

10 On the appeal, counsel for KP relied on this Court's decision in Verdins[8] to argue that the sentence was appropriate, on the basis that:

(a) KP's moral culpability was reduced because of his intellectual disability and his inability to exercise appropriate judgment;

(b) his social worker, Ms Maureen Judd, had said in 2006 that incarceration would be very much to KP's detriment; and

(c) Dr Russ Scott had said that, if KP were incarcerated, his intellectual disability and vulnerability ought to be taken into account.[9]

11 These were not KP's first offences of violence against women. In 1995, he was convicted of causing injury intentionally or recklessly to a female neighbour, and was sentenced to be released on a community-based order for a period of two years. KP was only 17 or 18 at the time. Mr Andrew Gibbs assessed KP as an in-patient following this conviction, and reported as follows:

[KP] admitted to me of going to [his neighbour's] house with the intention of sex, becoming involved in an altercation. He also said to me that he had been reading a pornographic magazine ... in the time preceding the incident, and had been thinking of sex in the preceding two days.[10]

12 In 2005 KP was convicted of stalking his ex-partner and breaching an intervention order against her. He was again convicted of stalking in 2006. The present offence against J occurred whilst KP was on bail in relation to offences committed in 2004 and 2005 - assault, recklessly causing injury, stalking and threatening to inflict serious injury.[11] KP was subsequently convicted of those offences, and placed on a community-based order for 12 months.

13 In 2006, KP was assessed by psychiatrists, Dr Kate Roberts and Dr Danny Sullivan. He reported to them that he had:

last assaulted someone in 2004 and shrugged it off as an "accident". He went on to describe it as an argument with his ex-partner. He reported that she was standing too close and he thought "fuck this" and "accidentally smashed her in the face."[12]

Importantly, Dr Roberts and Dr Sullivan also concluded that KP's 'difficulties [related] directly to his personality, not to mental illness'.[13]

14 In his 2007 report, prepared in connection with the stalking offences, Dr Scott made the following observations:

[KP] does not think he deserves a custodial sentence for his [offences against his ex-partner].

When asked how he might have avoided his current forensic issues, [he] replied that he should have been less impulsive in his actions. He reported that he had resolved to "keep away from women" because his problems always related to them. [14]

a prominent history of impulsivity and poor behavioural controls, unreliability, not accepting responsibility, parasitic lifestyle and lack of realistic long-term goals. He evidences a lack of remorse and shows an inability to appreciate why others might be concerned about his past violent behaviour. There is also evidence of callousness and lack of empathy.

[He] has significant historical risk factors for future violence including a history of episodes of violence of escalating seriousness directed virtually exclusively against women and prior supervision failure.

He also has very limited insight (understanding and evaluation of his own mental processes, reactions, self knowledge and understanding of mental disorder, making connections between thought and action, need for treatment risk of future violence) and evidences an indifference toward past offending and acts of violence.

...

[KP] has significant lack of a personal support network and has limited help-seeking or help-accessing skills.[15]

15 As was pointed out in R v MacNeil-Brown,[16] the submission on a Director's appeal that a sentence is 'manifestly inadequate' is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion. At the request of the Court, counsel for the Director provided a written submission identifying the sentencing range which - according to the Director - was open to the sentencing judge in sentencing KP for these offences. We have found it of considerable assistance to have had this clear identification by the Director of the applicable sentencing range, accompanied as it was by the detailed sentencing information (statistics and authorities) said to substantiate the range identified.

16 The sentencing range identified by the Director is set out in the table below. As the submission made clear, these figures have not been adjusted to allow for the reduction which would be applied on account of double jeopardy were this Court to allow the appeal and resentence KP.

CROWN SUBMISSION RE APPLICABLE SENTENCING RANGE

17 If the Director's submission on range is correct, the sentence imposed represented barely 50 per cent of the sentence said to be at the lowest end of the available range. On any view, that would make the sentence manifestly inadequate.

18 The submission for KP, however, was that the Director's submission on range should be rejected. Counsel argued that a head sentence of five years, with a non- parole period of three years, was 'pretty typical' for rape offences of this kind. That being so, he argued, and allowing for a discount for 'the undoubted impact of KP's intellectual disability on his experience of imprisonment', the sentence imposed could not be said to be outside the range.

19 Senior counsel for the Director disputed that five years with a minimum of three years was representative of the sentencing range for offending of this kind. When asked by Redlich JA to identify what were said to be aggravating factors, senior counsel referred to the following matters: the victim was known to the respondent; she was alone; and she was in a place where she might have expected to feel safe. As Redlich JA pointed out, however, these appeared to be (regrettably) common features of this kind of offending.

20 The Director's submission on sentencing range was supported by the Sentencing Advisory Council's Sentencing Snapshot No 26, which analyses sentencing outcomes for the offence of rape in the period 2001/02 to 2005/06. Of the 181 people sentenced for rape over that period, 88 per cent received a custodial sentence. Imprisonment terms ranged between one and 20 years. Both the median and mean term of imprisonment was five years.

21 The Director's submission also included summary details of 10 sentencing decisions in 2007 and 13 in 2008, mostly in the County Court, in what the Director said were 'arguably comparable cases'. In 2007, the lowest sentence for rape was two years' imprisonment, while the highest was 12 years' imprisonment. In 2008, the lowest was, again, two years' imprisonment and the highest was eight years' imprisonment.

22 For ease of comparison, we have summarised the key features of those sentencing decisions in the Table attached to these reasons. The same sentencing information was provided to the Court in DPP v Maynard.[17] It was noted there that the median sentence for a single count of rape was seven years' imprisonment in 2007 and five years' imprisonment in 2008.[18] We note further that, as appears from the attached table, two of the three cases in which a sentence of two years was imposed were cases where the accused had pleaded guilty. KP, by contrast, contested these charges and still refuses to acknowledge his guilt.

23 It is clear, therefore, that the sentences imposed on KP on the rape counts - 18 months and two years respectively - were at the very lowest end of current sentencing practice. They fall far below what would ordinarily be expected in a case such as this, where the rapes were violent; the accused was on bail at the time; there was no discount for a plea of guilty; and the evidence disclosed a serious risk of re-offending. The question is whether the mitigating factors, to which reference will be made, could reasonably justify the sentence imposed.

24 Of course, current sentencing practices are neither the only, nor the determinative, consideration. The judge was obliged to have regard to the maximum penalty of 25 years for rape.[19] As the Court said in Maynard, the high maximum indicates the seriousness with which Parliament views the offence of rape. This matter was addressed in DPP v Avci,[20] 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.[21] This is the highest maximum provided for by the Crimes Act.[22] 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[23] ("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:[24]

"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."[25]

25 In support of the contention that the sentence was manifestly inadequate, the submission for the Director drew attention to what were said to be significant omissions from the sentencing reasons. Senior counsel pointed out that the sentencing judge had either made no reference to, or reached no conclusion about, the following important sentencing considerations:

general deterrence;
denunciation;
protection of the community;
KP's prospects of rehabilitation; or
the significance, as an aggravating factor, of his having committed these offences while he was on bail.

The failure to advert to or reach conclusions about these matters signified - so it was said - a failure to take any of them into account, which in turn was said to explain the manifest inadequacy of the sentence.

26 The judge began his reasons with an account of the circumstances of the offending. He noted the 'lasting psychological impact on the victim' and her 'continuing fear of retribution', and then turned to consider KP's personal circumstances. He made the following findings about KP:

his general cognitive abilities were poor;
he had a very limited reading capacity 'but surprisingly [was] regarded as accomplished in the use and repair of computers';
he was assessed in April 2007 as being in the 'mild intellectual disability' range;
he was assessed in August 2006 as presenting 'a continuing threat of stalking and violence to [his] then victim and that [he had] little or no insight into [his] past bad behaviour'.

You maintain your innocence of the present offending. You claim that the victim invited and encouraged the sexual activity that you admit took place. As your counsel correctly submitted, you can receive no credit for any sense of remorse. I record my concern that your convictions in this trial might not persuade you from your further offending.[26]

His Honour referred to KP's prior convictions and then said:

It is relevant to your prospects of rehabilitation that at the time of your present offending you were on bail in relation to offences committed in 2004 and 2005. ... Following your conviction for those offences you were placed on a community-based order for 12 months.[27]

It is accepted that your offending calls for an immediate sentence of imprisonment. [The prosecutor] submitted that your sentence should be for a substantial period. She referred to your lack of social support; your lack of concern for your victims; your high risk of re-offending. [Defence counsel] submitted on your behalf that in accordance with R v Verdins 169 A Crim R 581,[28] your impaired mental functioning must be brought into account. He submitted that your condition as outlined in the reports moderates your responsibility for your offending. Imprisonment will have an adverse effect on your mental health and that is supported by the fact that since being in custody you have moved to facilities for intellectually disabled prisoners. You are assessed as a suicide risk. Those are important considerations.[29]

29 In R v Koumis,[30] the Court (Redlich and Kellam JJA and Osborn AJA) emphasised the importance of giving adequate reasons for sentence:

To ensure that the instinctive synthesis in the sentencing process is not unfathomable and does not conceal error, the "law strongly favours transparency". Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public. Each must be able to understand, from the sentencing remarks, what are the principal factors that have influenced the sentencing decision.[31]

desirable that conclusions reached by the sentencing judge as to the primary arguments advanced by the parties, particularly if they are in controversy, should be apparent from the reasons.[32]

30 In the present case, the sentencing reasons did not adequately disclose the key factors which led to the sentencing decision. As appears from the extract set out in paragraph [28] above, his Honour recorded the competing submissions advanced on the key issues - whether KP's impaired mental functioning reduced his culpability and/or represented a risk of re-offending - but expressed no view of his own. As a result, the reasons did not sufficiently explain how the sentence was arrived at.

Community protection and the assessment of risk

31 The judge correctly concluded - contrary to defence counsel's submission - that KP fell to be sentenced on count 8 (the rape (penile) count) as a serious sexual offender under Part 2A of the Sentencing Act 1991 (Vic). His Honour made a declaration to that effect, but said: 'That has not had impact on the sentence imposed'.[33] He did not explain why.

32 Under s 6D of the Sentencing Act 1991 (Vic), the judge was required, in determining the length of the term of imprisonment to be imposed on count 8, to regard 'the protection of the community from the offender as the principal purpose for which the sentence is imposed'. Under s 6D(b) the court had the power, if necessary in order to achieve that purpose, to impose a disproportionate sentence. (In addition, under s 6E, the sentence imposed on count 8 had to be served cumulatively on the sentence imposed on the other counts, unless the court directed otherwise.)

33 The judge made no reference in his reasons to the obligation imposed by s 6D(a). What was required was an assessment of the risk to the community which KP represented, in order to ensure (so far as possible) that the term of imprisonment fixed would serve the paramount purpose of protecting the community against that risk. A risk assessment of this kind is conventionally undertaken by sentencing judges when the serious sexual offender provisions come into play.[34]

34 The issue of community protection was squarely raised by the prosecution on the plea. The prosecutor informed the judge at the beginning of her submissions that the Crown's 'two primary concerns' were that KP's 'violence is escalating' and that there was 'a high risk of recidivism'. The prosecutor referred to KP's long history of anger problems. She noted that, although he had completed anger management courses in 1995, 1996, 1998 and late 2005, the opinion of Dr Scott in April 2007 was that KP did not 'appear to have engaged more than superficially with his previous anger management counsellor'.[35] As noted earlier,[36] Dr Scott had also expressed the opinion that KP had

significant historical risk factors for future violence including a history of episodes of violence of escalating seriousness directed virtually exclusively against women, and prior supervision failure.

35 The prosecutor drew attention to KP's 1995 conviction for assaulting a female neighbour. Although this was not, strictly speaking, a conviction for a sexual offence,[37] it was clear on the materials before the Court that KP's motivation was sexual. The contemporaneous report from the neuro-psychiatry unit of the Royal Melbourne Hospital recorded that KP had admitted

going to the house with the intention of sex, becoming involved in an altercation. He also said to me that he had been reading a pornographic magazine ... in the time preceding the incident, and had been thinking of sex in the preceding two days.

In his 2006 report, Dr Sullivan said that this conviction 'should be noted in any assessment of risk for future violence'.[38] When the matter was raised by the prosecutor, however, the sentencing judge said: 'I am not really concerned with what happened in some dispute with a neighbour in 1995. That is 13 years ago.'

36 The prosecutor also drew to his Honour's attention that, according to several of the reports, KP had an inability to appreciate why others might be concerned by his behaviour, had a lack of empathy with his victims, and had shown an unwillingness to take responsibility for his offending. One of the reports was from the Department of Human Services ('DHS'). His Honour responded by saying: 'I don't think I'm helped by views like that expressed in a departmental report.' The prosecutor then pointed out - correctly - that the successive psychiatric reports, by Dr Sullivan and Dr Scott respectively, had also reported on KP's lack of insight into his offending and his tendency to minimise it. Defence counsel accepted that KP had shown no remorse and did not accept responsibility for the offences before the Court.

HIS HONOUR: What do I decide as a result of that? Keep him in prison for an extra 12 months or two years or what are you suggesting, that factor in terms of how does [it] affect the sentence that I should impose?

COUNSEL: Your Honour, perhaps that's a matter that would be more relevant to considerations that the Parole Board would have in relation to supervising and monitoring the prisoner's release. It's a difficult sentencing exercise for your Honour but the Crown is concerned that there is a high risk of re-offending for this prisoner because of those factors. [39]

HIS HONOUR: Yes.

38 The prosecutor submitted that KP should receive a substantial period of imprisonment 'to reflect the violence and the nature of the offending'. The following exchange then took place:

HIS HONOUR: After a substantial period of imprisonment, the community will still face the risk that you have drawn my attention to?

COUNSEL: I think that's correct, Your Honour. I do note that in the reports it's recommended that perhaps cognitive behavioural therapy would assist this offender.

HIS HONOUR: He won't receive that in prison. He'll get very little, if any treatment in prison.

In my fairly extensive time I've never heard a prosecutor put to a judge in response to defence counsel's submissions that there is a risk of recidivism inviting the judge to impose a sentence, in other words throw away the key. He's got nowhere to go, he's got no supports in the community, there's a risk of recidivism, his offending is escalating. Looking into the crystal ball and throw away the key. That's in effect what's being asked of your Honour.

In total disregard of the authorities. That's not what your Honour's task is in sentencing which is the hardest task a trial judge has in these courts. It's not to look into the crystal ball and hope and act on emotion as those things are, the risk of offending. The reality is despite the fact that he has a common assault prior conviction in 1995 in relation to the neighbour, that's not a sexual offence. It might have had a sexual overtone, but it's not a sexual offence prior conviction otherwise he'd be in more trouble but he's not.

That can't be used by your Honour as a sexual offence prior conviction. It's simply a matter that goes to his prior history which is not significant. He doesn't have a substantial prior history that you might expect that he would at the age of 31. He's got a fairly minimal prior history but these are serious charges and ... I conceded at the outset that he's shown (1) no remorse and (2) that an immediate custodial sentence ought to be served.

Intellectual disability and moral culpability

40 As the judge noted, it was submitted for KP on the plea that his intellectual disability engaged the principles first enunciated in R v Tsiaras[40] ('Tsiaras') and restated in R v Verdins[41] ('Verdins'). Defence counsel submitted that all six propositions from Verdins[42] were applicable to the present case.

41 The Verdins/Tsiaras principles provide guidance as to the ways in which 'impaired mental functioning' may be relevant to sentencing. Although these principles were developed in relation to psychiatric disorders and abnormalities, they are equally applicable to intellectual disability, as Dodds-Streeton JA explained in R v McIntosh.[43] As her Honour pointed out, that is the approach which this Court has consistently taken.[44]

42 The plea in the present case proceeded on that basis. Defence counsel submitted that the sentence to be imposed ought to be modified so as to reflect KP's mental status, both at the time of the offending and at the time of sentencing. Although this submission was not elaborated, his Honour treated it as a submission in two parts - first, that KP's moral culpability was reduced because of his intellectual disability (Verdins proposition 1); and, secondly, that imprisonment was likely to have an adverse effect on KP's mental health (Verdins proposition 6).[45]

[T]he 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.[46]

The question will always be, as Ashley JA said in Wise,[47]

whether, in the particular case, it has been shown that the accused person's moral culpability, or the significance of general or specific deterrence, is reduced because of intellectual disablement.

44 As already noted, the Court had before it reports which assessed KP, successively, as at 1995 (neuro-psychiatric), 1999 (psychometric), 2006 (Dr Sullivan, psychiatrist), 2007 (Dr Scott, psychiatrist; and DHS) and 2008 (J Cummins, forensic psychologist). The reports speak, quite consistently, of KP's lack of insight into his behaviour; his difficulties with interpersonal relations; his impulsivity and poor behavioural control; his unwillingness to take responsibility for his conduct; and his lack of empathy for his victims.

45 The report most directly relevant - since it followed KP's conviction for the current offences - was that of Mr Cummins, who reported that:

while on remand, KP had made two suicide attempts. KP said he was 'thinking about killing [him]self daily';
KP maintained his innocence in relation to the offences of which the jury had convicted him, asserting that the sexual intercourse was consensual;
it was 'quite possible' that KP had difficulty accurately perceiving interpersonal cues;
KP knew it was wrong to engage in sexual contact with a person who was not consenting;
KP had said that, for the three years preceding this offending, he was 'single and flirting - but girls are a trouble for me'.

46 As explained in Verdins, impaired mental functioning may reduce the offender's moral culpability in any number of ways, including if it has the effect of impairing the offender's ability to exercise appropriate judgment, or to make calm and rational choices, or if it makes the offender disinhibited or if it obscures the offender's intent to commit the offence.[48] Whether, and to what extent, moral culpability is reduced must depend on all the circumstances of the case. The Court will need to assess the expert evidence to determine whether the mental impairment is shown to have caused or contributed to the offending and, if so, whether the offender is to be adjudged less blameworthy as a result.

47 In the present case, as Redlich JA pointed out in argument, it is significant to the assessment of moral culpability that KP has a reduced capacity for rational judgment as compared with a person without his mental impairment. As was stated in the Justice Plan prepared for him by the DHS in June 2007, KP 'acts on impulse and immediate gratification rather than considering possible consequences to himself and/or others'. KP's lack of insight manifests itself in an inability to understand either the seriousness of what he has done or the gravity of its impact on his victims.

48 At the same time, it seems clear that he is capable of some degree of self-control. For example, during an interview with DHS, KP

became agitated when his requests were declined and responded by approaching the author in an intimidatory manner and raising his voice. [KP] calmed down when informed the interview would be terminated unless certain standards of behaviour were adhered to.

Similarly, he is not without the ability to make moral judgments, as is shown by his acknowledgment to Mr Cummins that it was wrong to engage in non-consensual sexual contact, and by his repeated apologies to the victim of these rapes.[49]

49 In our view, KP's moral culpability for this serious offending should be viewed as somewhat reduced by virtue of his mental impairment, but by no means eliminated.[50] We also accept - as is apparent from Mr Cummins' report - that KP's intellectual disability makes his experience of imprisonment more burdensome than it would be for someone with normal mental functioning (Verdins proposition 5). KP reported that he was 'being regularly ridiculed and teased within a custodial setting' and, for this reason, was requesting a transfer to Thomas Embling Hospital.

50 Cases of this kind present sentencing judges with a particularly difficult task. On the one hand, the offending is very serious in nature, and there is a significant risk of re-offending, attributable in large measure to the offender's intellectual and personality shortcomings. Nor does KP receive the discount available to an offender who has pleaded guilty and has shown remorse. On the other hand, as we have said, the mental impairment provides cogent reasons to mitigate sentence, both on account of reduced moral culpability and because of difficulties likely to be experienced in prison.

51 In the end, however, this was a case where the need for community protection had to be regarded as paramount. As we have noted, that was the unambiguous effect of the legislative command in s 6D(a). (Although the statutory requirement applied only to one count, the sentence imposed on that count had to satisfy that requirement). But, even if that provision had not applied, the sentencing court could not ignore the very serious implications of what had occurred here - these offences representing a significant escalation in seriousness over what had gone before - and of the evidence showing a significant risk of KP committing further offences of violence, whether sexual or not.

52 In our view, the sentence imposed on KP fell well outside the range reasonably open to the sentencing judge in these circumstances. A substantially higher sentence was called for. Since his Honour did not explain how the various factors were brought to bear on the sentencing decision, we are constrained to infer that the matters urged in mitigation were allowed to overwhelm other considerations, leading to error of principle.

53 We would allow the Director's appeal and, allowing for double jeopardy, would resentence KP as set out in the table below:

KP was sentenced as a serious sexual offender on count 8.

54 We noted earlier[51] the scepticism expressed by the sentencing judge about whether a lengthy prison term would do anything to reduce the risk of KP re-offending. For our part, we think it can be reasonably assumed that service of the minimum term of four years will have some deterrent effect on KP, notwithstanding his cognitive limitations. We would also assume that, given appropriate supervision during the period of parole, some progress can be made with KP's rehabilitation.

55 In McIntosh, the applicant had been on bail pending appeal. The DHS in the meantime implemented a new case management plan, so that by the time of the appeal

the applicant was benefiting from stable, satisfactory accommodation, 24 hour support with medication management and DHS organisation and coordination; and was conducting himself well and had not re-offended for a period of eight months.[52]

56 We express the hope that some equivalent arrangement can be put in place for KP following his release on parole. This would seem to be a matter of absolute necessity, in the interests both of the community and of KP himself.

Armed robbery, false imprisonment, intentionally causing injury.

Indecent assault; aggravated burglary; making threat to inflict serious injury.

Abduction with intent to rape; recklessly causing injury.

[1] Psychological report prepared by Jeffrey Cummins, 24 April 2008 p 4.

[3] Neuropsychological report prepared by Dr Andrew Gibbs, Neuropsychiatry Unit, the Royal Melbourne Hospital p 3; Psychological report of Leanne Cusak, 2 February 1995 p 1; Report of Dr Kate Roberts and Dr Danny Sullivan, Victorian Institute of Forensic Mental Health, 7 August 2006 p 4.

[4] Report of Dr Kate Roberts and Dr Danny Sullivan, Victorian Institute of Forensic Mental Health, 7 August 2006 p 4.

[5] Psychiatric report of Dr Russ Scott, Victorian Institute of Forensic Mental Health, 27 April 2007 [70].

[6] Neuropsychological report prepared by Dr Andrew Gibbs, Neuropsychiatry Unit, the Royal Melbourne Hospital p 6.

[7] Psychological report prepared by Jeffrey Cummins, 24 April 2008 p 4.

[9] Psychiatric report of Dr Russ Scott, Victorian Institute of Forensic Mental Health, 27 April 2007 [78].

[10] Neuropsychological report prepared by Dr Andrew Gibbs, Neuropsychiatry Unit, the Royal Melbourne Hospital p 1.

[11] R v Patterson (unreported, County Court of Victoria, Judge Duckett, 2 May 2008) [18].

[12] Report of Dr Kate Roberts and Dr Danny Sullivan, Victorian Institute of Forensic Mental Health, 7 August 2006 p 3.

[14] Psychiatric report of Dr Russ Scott, Victorian Institute of Forensic Mental Health, 27 April 2007 [54]-[55].

[15] Psychiatric report of Dr Russ Scott, Victorian Institute of Forensic Mental Health, 27 April 2007 [67]-[71].

[16] [2008] VSCA 190, [9] (Maxwell P, Vincent and Redlich JJA); see also Carroll v R [2009] HCA 13; (2009) 254 ALR 379, 381.

[19] See DPP v CPD [2009] VSCA 114; DPP v DDJ [2009] VSCA 115.

[20] [ 2008] VSCA 256 [26]-[27].

[21] As to the significance for sentencing purposes of the maximum penalty, see R v AB (No 2) [2008] VSCA 39.

[22] The same maximum is provided for armed robbery, aggravated burglary and trafficking in a commercial quantity of a drug of dependence.

[26] R v Patterson (Unreported, County Court of Victoria, Judge Duckett, 2 May 2008) [16].

[29] R v Patterson (Unreported, County Court of Victoria, Judge Duckett, 2 May 2008) [19].

[33] R v Patterson (Unreported, County Court of Victoria, Judge Duckett, 2 May 2008) [38].

[34] See eg, DPP v CPD [2009] VSCA 114 [49]; DPP v LFJ [2009] VSCA 134 [30]; and DPP v DDJ [2009] VSCA 115 [28]-[29].

[35] Psychiatric report of Dr Russ Scott, Victorian Institute of Forensic Mental Health, 27 April 2007 [73].

[37] As defence counsel pointed out during the plea.

[38] Report of Dr Kate Roberts and Dr Danny Sullivan, Victorian Institute of Forensic Mental Health, 7 August 2006 p 5.

[43] (2008) VSCA 242, [84]-[104].

[44] See R v Bux [2002] VSCA 126; (2002) 132 A Crim R 395; R v Wise ('Wise') [2007] VSCA 266 [16]. See also DPP v Lovett [2008] VSCA 262 [37] and the cases there cited.

[45] R v Patterson (Unreported, County Court of Victoria, Judge Duckett, 2 May 2008) [19] - see [28] above.

[46] Verdins [13]. See R v Howell ('Howell') [2007] VSCA 119; (2007) 16 VR 349 [20] (Nettle JA).

[48] Verdins [26]; Howell [20].

[50] Cf R v McIntosh ('McIntosh') [2008] VSCA 242, [109].

At a glance

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Judgment (137 paragraphs)

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Cases Cited (4)