Leeder v The Queen [2010] VSCA 98

1 I will invite Buchanan JA to deliver the first judgment.

2 The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of assault with intent to rape (count 1), two counts of indecent assault (counts 2 and 3) and one count of intentionally causing injury (count 4). After a plea, the appellant was sentenced to be imprisoned for a term of four years and eight months on count 1; for a term of 12 months on count; for a term of three years on count 3; and for a term of 18 months on count 4. With a measure of cumulation, a total effective sentence of six years and four months was produced. The sentencing judge fixed a minimum term of three years and nine months before the appellant was to become eligible for parole. The appellant was sentenced on count 3 as a serious sexual offender.

3 The appellant has been granted leave to appeal against the sentence by a single judge of this Court.

4 The offences arose from assaults by the appellant upon two women. The victim of the first attack, a woman aged 27 years, was walking in the afternoon in Stud Street, Kensington. As she was about to cross the road, she turned and made eye contact with the appellant. The appellant grabbed her in a bear hug lifting her off the ground. He carried her some five metres behind a hedge, threw her onto the concrete and got on top of her. The woman was screaming and pleading with the appellant not to hurt. He yelled at her to, 'Shut up' and said 'I just want to fuck you', while pushing her head into the concrete.

5 The appellant grabbed the victim's hands and pinned them behind her head and started kissing her on the mouth. She screamed for help. The appellant placed his hand over her mouth and said, 'Shut up or I'll kill you'. She continued to struggle, trying to attract the attention of passers-by. The appellant pushed her head

down, causing her pain. He ground his groin against hers whilst straddling her and leaning forward (count 1). He continued to tell her to shut up. He took his hand away from her mouth and face and placed it on her right breast under her clothing (count 2). The woman struggled to sit up and lashed out, scratching the appellant on the face. When two passers-by approached, the appellant walked away from his victim, saying loudly, 'I only wanted to fuck you'.

6 The victim sustained a swollen nose, multiple bruises and abrasions to her right shoulder, bruising over her iliac spine, abrasions to her right wrist and hand and abrasions to her left wrist.

7 The second victim, a 47 year old woman, was running home after work along the Moonee Ponds Creek bike path. She passed the appellant who again grabbed his victim in a bear hug, pinning her arms to her body. They fell to the ground struggling. The victim kicked and screamed and tried to break free. The appellant puncher her once in the mouth with his closed fist and twice to her face (count 4).

8 The victim tried to protect her face with her arm and curled up in a foetal position. The appellant punched her a number of times on the shoulder and in the region of her head (count 4).

9 At one point the appellant grabbed her on the breast and squeezed hard (count 3). He then stopped, stood up and ran off.

10 The victim was conveyed to hospital by ambulance suffering from haematoma to the left eye, abrasions to her face, lacerations to her left hand and abrasions to her left arm and shoulder.

11 The appellant is 28 years old. His early life was chaotic. His mother was a nurse and his father unemployed. He was removed from home at the age of seven years as a result of physical abuse at the hands of his father. After 12 months he returned home but at the age of nine years the Department of Human Services again took custody of the appellant and thereafter he spent only limited periods of time residing with his parents. At the age of 14 years, as a result of behavioural problems including violent attacks by the appellant upon his mother, he was made a ward of the State and resided in a boys' home. The appellant has only a limited degree of literacy. He has a history of assaulting other people and poor impulse control. From the age of 14 years he assaulted Department workers.

12 The appellant was discharged from care at the age of 18 years but had ongoing difficulties with accommodation and dealing with everyday life. He has been frequently evicted from premises for non-payment of rent and his interaction with others has left him without friends or real support. His parents refuse to have anything to do with him. Before he was sentenced, the appellant was living in short term accommodation and on the street.

13 While the appellant was in the care of the State, he worked on a farm which he enjoyed. He received some training and experiencing in blacksmithing and was able to start his own business which he maintained for two and a half years. Thereafter he was employed for short periods in a variety of different types of work, including window cleaning, plastering and as a mechanical assistant.

14 The appellant commenced drinking alcohol while in the care of the Department of Human Services at the age of about ten years and progressed to abuse of marijuana and then chroming and sniffing lighter fluid and petrol. At the age of 18 years he experimented with amphetamine and commenced using heroin at the age of 19 years. In 2005 he attempted to overdose on heroin when he found out his father was planning to undergo gender reassignment. The appellant told police when he was arrested that he had been chroming at the time of the commission of the offences, the subject matter of this appeal.

15 In the course of the plea, a report by a forensic psychologist was tendered. The psychologist reported: 'Mr Leeder emanates from a background characterised by emotional, physical and possible sexual abuse, this undermining his social, vocational and emotion development. In addition he suffers a mild intellectual disability and poor impulse control. At interview Mr Leeder presents as cognitively and emotionally immature with a limited ability to reflect on the impact that his behaviour has on himself and others. He has a low tolerance for frustration and poor impulse inhibition.' The psychologist also observed that the appellant exhibited symptoms consistent with a diagnosis of clinical depression.

16 A report by another psychologist made in 2006 in respect of other offences was also tendered. The psychologist reported that testing revealed that the appellant had an overall intelligence quotient of 67, which, 'places him in the mildly intellectual disabled range of ability'. The psychologist said the level of the appellant's cognitive functioning was that of an eight year old, although he had considerably more life experience.

17 The appellant has some 95 prior convictions from 13 court appearances including convictions for offences of dishonesty, traffic offences and drug offences, but not, it seems, offences of violence against persons. The appellant has served some relatively short prison sentences. He has also been given good behaviour bonds, community-based order and suspended sentences.

18 The first ground of the appeal is that the total effective sentence, the individual sentences and the non-parole period were manifestly excessive. Counsel for the appellant relied on a number of mitigating factors: the appellant's serious intellectual disability which required sensible moderation of specific and general deterrence and reduction of moral culpability; the added burden to the appellant of imprisonment arising from his intellectual disability; and the requirement that the sentence be served in protection; the early plea of guilty; the appellant's remorse; the severe deprivation experienced by the appellant in growing up; lack of prior violent or sex offences; the appellant's limited previous experience of incarceration and the fact that the appellant had been released from gaol without any support a month before the commission of the first offence.

19 On the other hand, the offences themselves were serious. There were two separate attacks on defenceless women in public places. The attacks were sustained and executed with a degree of savagery. The appellant had a disturbing record of prior convictions. His prospects of rehabilitation were limited, for his offending was often associated with his use of drugs. The psychologist who last examined the appellant thought that there was a high risk of the appellant relapsing into drug use.

20 Although the mitigating factors relied upon by counsel for the appellant are significant, the sentencing judge was required to weigh in the balance the gravity of the offences themselves. It is, I think, unfortunate that there are no more appropriate methods than imprisonment for dealing with intellectually handicapped offenders, who are subject to forces with which they are ill equipped to deal. Imprisonment is a blunt instrument which is not designed to deal with offenders such as the appellant.

21 In my opinion, neither the individual sentences nor the total effective sentence properly reflect the deprived background of the appellant, the intellectual disability with which he struggles or the fact that he had never before committed a similar offence. Accordingly, in my view, these were not sentences which a reasonable sentencing judge could have imposed.

22 Ground 2 of the appeal is that the sentencing judge erred in finding that the appellant, notwithstanding his intellectual disability, must have been aware of the likely effects of his offending upon his victims. Counsel for the appellant submitted that the finding reflected a failure to grasp the significance for sentencing purposes of the appellant's intellectual disability and alienation. The appellant told a psychologist that he had been using marijuana, chroming and using heroin at the time of the offences and did not know why he did it. He said that he thought about it afterwards and thought it was 'awful, really silly'. Counsel for the appellant who appeared at the plea did not submit to the sentencing judge that the appellant's intellectual disability prevented him from appreciating the fear that his conduct would have engendered in his victims.

23 In my opinion, the sentencing judge was entitled to reach the conclusion she

did, based upon the appellant's actions and the reactions described by his victims. The appellant's mild intellectual disability is hardly likely to have precluded him from appreciating the natural consequences of his actions.

24 The final ground of the appeal is that the sentencing judge erred by ordering that there be a measure of cumulation as between the sentences imposed on counts 3 and 4. As I propose to re-sentence the appellant, I say no more of this ground.

25 For the foregoing reasons, I would allow the appeal. I would re-sentence the appellant to be imprisoned for a term of three years and six months on count 1; for a term of 12 months on count 2; for a term of two years and three months on count 3; and for a term of 18 months on count 4.

26 I would cumulate six months of the sentence on count 3 and three months of the sentence on count 4 on each other and on the sentence on count 1. The total effective sentence is four years and three months' imprisonment.

27 I would fix a period of two years and nine months before the appellant is to be eligible for parole.

28 I agree and, subject to what follows, I do so for the reasons which his Honour has given.

29 The most significant consideration on this appeal, in my view, is the appellant's intellectual disability. The seriousness of the offending was, of course, central to the sentencing task but, in considering whether the sentence imposed was manifestly excessive, the intellectual disability is the key issue.

30 As Buchanan JA has recited, the appellant has an IQ of 67. He is described by Ms Lechner as 'cognitively and emotionally immature'. At the same time, he is assessed as having the cognitive functioning of an eight year old child. It seems to me to be an understatement to describe that as 'cognitive immaturity.'

31 Further, this could hardly be described as only 'mild' intellectual disability. If the appellant's cognitive function is that of an eight year old, that must surely count as severe intellectual disability. In the matter of DPP v Lovett,[1] the respondent had an IQ of 70, slightly higher than the present appellant's. He was described as being severely intellectually disabled. I know nothing about how intellectual disability is assessed but, to the extent that it relies on IQ, there is an unexplained divergence in the assessment of two men of roughly the same IQ.

32 The present appellant, whatever his life experience, has to deal with the world with the cognitive capability of an eight year old. As his counsel submitted, the fact that he said to his victim after she beat him off, 'I only wanted to fuck you' would appear to reveal a lack of understanding of the utter inappropriateness of what he had just done.

33 The following passage from DPP v Lovett,[2] about the significance of intellectual disability for the moderation of general deterrence,[3] is relevant to the present case:

Intellectual impairment has long been recognised as having a moderating effect on general deterrence. In R v Yaldiz,[4] Batt JA discussed the effect on general deterrence of mental impairment and intellectual disability in these terms:

... [G]eneral deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap. [5]

It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective. Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, [retains] the intellectual capacities of a child. 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.[7]

34 Moral culpability and general deterrence apart, the appellant's disability attracted the operation of Principle 5 in R v Verdins.[8] That is, imprisonment imposes a greater burden on someone who is functioning with the brain power of an eight year old. That aspect does not appear to have been taken into account on sentence, although it was adverted to on the plea.

35 In my respectful opinion, no reasonable judge could have concluded, taking into account the factors peculiar to this offender, that the offending on count 1 warranted a sentence of four years and eight months. I say that having regard to current sentencing practices both for this offence and for the offence of rape.

36 The median sentence for rape, as identified in the Sentencing Snapshot published in June 2009 by the Sentencing Advisory Council, is five years. That means that there are as many sentences for rape above five years as there are under five. But I can see no reasonable justification for imposing on this offender a sentence of almost five years for an offence the maximum penalty for which is only 40 percent of the maximum for rape.

37 A separate and very serious question arises about the adequacy of current sentencing practices for rape. The Director of Public Prosecutions sought to ventilate that matter in the case of DPP v Maynard,[9] decided by this Court last year. The Court said, once again, that these matters cannot be ventilated for the first time on appeal. We continue to await appropriate initiative from the Director to have these matters of sentencing practices ventilated at the appropriate time on the appropriate material. But, so long as sentencing practices remain as they are, this Court must be concerned to ensure consistency of sentencing. That is the first of the statutory objectives listed in s 1 of the Sentencing Act 1991 (Vic).

38 As I have said, the sentence imposed on count 1 is unjustifiably inconsistent with the current practice of sentencing for the much more serious offence of rape. That alone would justify appellate interference, in my view. My conclusion is reinforced by the very significant mitigation which flows from the appellant's cognitive impairment, which makes him an inappropriate vehicle for general deterrence. Saying that is not intended to derogate in the slightest from the importance of sentencing courts sending a message to the community that offending of this kind is viewed very seriously. Plainly it is.

39 Finally on the issue of intellectual disability, it seems to me important to ensure that this species of mental impairment is addressed with the same rigour and specificity as necessary in relation to the more familiar area of mental illness.[10] The use of labels such as 'mild' or 'moderate' or 'severe' intellectual disability does not assist the sentencing court in deciding whether, and if so to what extent, sentencing considerations are affected by the condition of the particular person. What the Court needs to know is how the disability (is likely to have) affected the mental functioning of the particular offender at the time of the offending (or in the lead-up to it) and/or how it is likely to affect him/her in the future.[11] As with mental illness, so with intellectual disability, there is scope for considerable refinement of expert opinion, and therefore of argument before sentencing courts, about how these matters are to be taken into account.

40 Finally, I wish to specifically associate myself with what Buchanan JA said about the inappropriateness of imprisonment as a disposition for persons with disabilities of this kind.

[1] [2008] VSCA 262.

[3] Ibid [37] (original citations omitted).

[4] [1998] 2 VR 376.

[6] (1992) 64 A Crim R 244, 254.

[8] [2007] VSCA 102; (2007) 16 VR 269.

[9] [2009] VSCA 129.

[10] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.