R v Wise [2007] VSCA 266

• On presentment C060508.1 ('the first presentment'), on a single count of recklessly causing serious injury, to 24 months' imprisonment.
• On presentment C0605208 ('the second presentment'), on a count (count 1) of common assault, six months' imprisonment; and on a count (count 2) of recklessly causing serious injury, to 24 months' imprisonment.

The learned sentencing judge ordered that one month of the sentence imposed on count 1 on the second presentment be cumulated on the sentence imposed on count 2. The total effective sentence in respect of that presentment, her Honour said, was 25 months' imprisonment. She then ordered that 12 months of the sentence imposed on the single count on the first presentment be cumulated on the sentence imposed on count 2 on the second presentment. This, her Honour said, resulted in the imposition of a total effective sentence, in all, of 37 months' imprisonment. She fixed a non-parole period of 20 months.

2 In this appeal, brought by leave, the appellant relies upon the following grounds:

1. 1. That the learned sentencing judge gave insufficient weight to the [appellant's] intellectual disability when fixing the total effective sentence.

1. 3. That the total effective sentence was manifestly excessive in all the circumstances.
2. 4. That the orders for cumulation announced by the learned sentencing judge produced a total effective sentence of 36 months, not 37 months. The [appellant's] total effective sentence as recorded in the Return of Prisoners should be corrected to reflect this.

3 The learned sentencing judge described the circumstances of the offending, which were uncontroversial, as follows:**

... On 11 February 2006, the victim in this matter, Richard David, was busking in Fitzroy Street, St Kilda with a friend. At about 4.30 p.m. he went to the 7-Eleven store. At about that time, one Shane Long, informed you and your co-accused Paul Morgan that the victim was a child molester. Both you and Mr Morgan followed the victim to the 7-Eleven store and forcefully removed him from those premises. Mr Morgan then assaulted the victim who managed to escape but was chased by you and two other persons. You eventually caught up with him and a witness observed the victim on the ground and what he described as all three offenders "laying boots in". He said, "I could hear the thud, thud, thud, kind of noise, as they were beating into him, stomping his head into the ground." The witness intervened and you walked away. ...

Mr David was conveyed to the Alfred Hospital where he was treated for a subdural haemorrhage and a large fronto-temporal scalp haematoma. He also suffered injury to his sphenoid bone, but the extent of this injury is unclear. Mr David remained in hospital until his release to a rehabilitation centre. The prosecution have been unable to contact Mr David to obtain an update in relation to his condition and no victim impact statement has been obtained.

... On Wednesday 5 April 2006, you were present at a house at 6 Ramsay Court, Swan Hill. You were there visiting the occupants of these premises along with a number of other family members. During the course of the day you were observed to be both drinking beer and taking pills. One of the occupants of these premises was the victim, Sharon Ziekle, who is your cousin and aged 19 at the date of this offence. At about 7.30 p.m. she was listening to some music and you tried to turn it off. She told you to leave it alone and to get away from it. You responded by saying "Don't tell me what to fucking do, I will kill ya". Ziekle then told you not to touch the television and you responded by punching her to the chest with your right fist. She started to cry and her mother told you to leave and when you refused two males who were present, physically removed you.

At about the same time you were evicted on to the street Adrian Kelcey and his nine year old son Bradley, were walking to some nearby shops. Bradley was a few houses ahead of his father. You pushed the nine year old child Bradley to the back and shoulder causing him to fall to the ground. You then picked up a council wheelie bin, raised it above your head and threw it at Bradley, hitting him in the head, upper body and arm. The child raised his arm to protect his face and his arm bore the full brunt of the impact. At the time the child's father was running towards him but was unable to stop you. Bradley was crying throughout, "Stop, stop".

Bradley was conveyed to the Swan Hill Hospital where the following injuries were noted: A grossly swollen left hand with a deep linear bruise over the dorsum, broken skin at the back of his head and swelling to this area; bruises on the left forehead, left of nose, right side of back; fractures of the second, third, fourth and fifth metacarpal shafts of the left hand, with considerable overlying swelling. The following day he was transferred to Bendigo Hospital for specialist treatment to his hand.

You were arrested at 7.40 p.m. that night but not interviewed until 9.34 the next morning, due to your intoxication. ...

4 There was evidence, to which the learned judge referred, that the child the victim of count 2 on the second presentment, at least for a period of months after the assault, had been fearful, suffered nightmares, and had been limited as to what he could do at school. At time of sentence, he was still being monitored. Her Honour concluded that the appellant's actions 'had a very significant effect upon a child of tender years both physically and emotionally'.

5 The appellant, born on 11 March 1979, was aged 25 and 26 respectively when the instant offences were committed. He is now aged 28. Largely uncontroversially, the learned sentencing judge described the appellant's antecedents this way:

... You are a 27 year old Aboriginal man, born in Swan Hill on 11 March 1979. You are the youngest of a sibship of 5. You spent your early years in the Swan Hill area. You have never known your father, nor had the benefit of any positive role model. Your young years were far from what they should have been. You were exposed to substance abuse and violence. You lived in impoverished circumstances and when you were eight years old, the Department of Human Services intervened by way of a protection application due to your mother's neglect. You were placed with an aunt in Swan Hill for about two years, at which time your mother returned and took you and two of your sisters to Manan, near Murray Bridge, in South Australia. I have been told that this proved to be an unfortunate move as it took you away from what small supports you had in the Swan Hill community. You had difficulty integrating and this was reflected in your school performance. You left school at 14 and returned to Swan Hill at 16. You have received no further education and have never worked. Your lifestyle has been transient and marked by substance abuse. You have never had permanent accommodation and have spent periods of time in custody. At 18, you received a $39,000 pay out as a result of an injury you sustained as a small child in a motor vehicle accident. It seems that this money was spent largely on drugs, primarily heroin and amphetamine.

6 The learned sentencing judge described the appellant's drug use and its implications for the future as follows:**

... You began smoking cannabis at 14, used amphetamine at 15 and progressed to heroin at 16. You have a longstanding heroin addiction and also use amphetamine when you can obtain it. ... Your drug use is described as in remission, due to your custodial setting, but the reality of your addiction will be a significant issue upon your release, and a matter that will need to be managed by the Parole Board, especially in light of your limited cognitive skills and entrenched behaviours.

7 Placed before the learned sentencing judge were reports prepared by two psychologists, Ms Elizabeth Warren (dated 28 March 2001) and Ms Carla Lechner (dated 23 November 2006). Alleged intellectual disability being central to ground 1 and relied upon also in respect of ground 3, I should highlight certain aspects of those reports.

8 Ms Warren interviewed the appellant and performed selected psychological testing in March 2001. According to her report, '(b)rief psychological testing only was conducted with results on individual sub-tests that indicate formal intellectual ability within the "extremely low" range.' She noted that the appellant could solve certain problems if given enough time, remarking that he was 'simply slow rather than incapable'. She diagnosed substance dependency with physiological dependence in early remission. She found no current signs of 'active psychosis' and 'no other signs of significant psychopathology such as major depression or anxiety or suicidal preoccupation'.

9 Ms Lechner administered certain psychological tests in November 2006. The results, she reported, 'placed him in the "mildly intellectually disabled" range of verbal intelligence', and were consistent with those reported by Ms Warren - although the latter's characterisation of the deficit differed from that made by Ms Lechner.

10 Ms Lechner offered a number of opinions which seem to have been based on her interview with the appellant rather than upon formal testing. Thus,**

Mr Wise impressed as being cognitively and emotionally immature with a very limited ability to reflect on the impact that his behaviour has on both himself and others. He is impulsive in nature and has a low tolerance for frustration, coupled with a very limited range of coping skills and strategies. Mr Wise finds it hard to both identify triggers to his negative feelings and to appropriately express them, tending to block out internal distress through drug use. He admitted that he simply lives moment to moment with no real thought about the future.

His thinking style is concrete in nature, hence he is likely to interpret the world around him in a subjective manner and have difficulty in taking perspectives other than his own. His knowledge of social conventions was very poor, his approach to solving socially-based problems impulsive in nature, and he demonstrated a lack of common sense.

**11 Ms Lechner opined that the appellant's limited cognitive skills would be further compromised by substance abuse.' She opined also that the appellant's intellectual disability might be the result of brain injury in childhood. There was evidence of his having been injured in a motor vehicle accident when very young. The cause of the observed deficit, I interpolate, would not seem to matter for present purposes.

12 I should mention also two other passages in Ms Lechner's report:**

I would hypothesise that Mr Wise has some form of frontal lobe damage, this affecting, in particular, his executive thinking skills such as planning, impulse inhibition, decision making and capacity for insight. He therefore lives moment to moment and derives most pleasure from being "high", given that he has little else in life in terms of interests, skills and significant relationships.

He is not currently exhibiting any symptoms consistent with either depression or anxiety. There was no evidence of disordered thought in formal content, although I note that he has been prescribed an antipsychotic agent and has previously experienced a drug-induced psychosis.

13 In the period between March 1997 and June 2005, the appellant was before the courts 22 times in respect of criminal matters. By my count, those appearances involved 134 offences in respect of which findings of guilt or convictions were recorded. Particularly relevant for present purposes were some 40 offences involving violence. There were single or multiple instances of intentionally cause serious injury, recklessly cause serious injury, intentionally cause injury, recklessly cause injury, reckless conduct endangering life, assault with a weapon, aggravated assault on a female, assault, armed robbery, robbery, and attempted robbery. The appellant had been often given custodial sentences - when he was young by way of detention in a youth training centre, later by imprisonment in adult institutions. Once, the sentencing disposition had included the setting of a non-parole period. Twice he had been convicted and imprisoned subsequent to the instant offences, a matter which the learned sentencing judge treated as being relevant to the appellant's prospects of rehabilitation.

14 The learned sentencing judge said this about the relevance of the appellant's intellectual deficit:**

Your intellectual deficits are a relevant matter. They properly ameliorate the usual effects of general deterrence in a matter such as this, and I have acted on that basis.

The complaint made by ground 1 of the appeal, as pursued on the hearing, was that her Honour did not bring the deficit into account in respect of the appellant's moral culpability for the instant offending; and that she undervalued the deficit in moderating the importance of general deterrence in the circumstances of the case. Counsel argued that the appellant's intellectual disability had combined with drug and alcohol use at the time of the particular offending, and so led on to the commission of the offences.

**15 In a very real sense, it is understandable that the judge below did not specifically address the issue of moral culpability. The only relevance of the intellectual deficit, according to counsel's submission on the plea, was with respect to general deterrence; and it was with that submission that the Crown agreed. But in my opinion, regardless of the way in which the matter was argued on the plea, and then on the appeal, the ground is not made out.

16 It can be accepted that intellectual disablement may be equated with mental illness,[1] this enlivening in a particular case considerations mentioned in R v Tsiaras[2] and in R v Verdins[3]. But the question will always be 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.

17 So far as the appellant's moral culpability for the instant offences is concerned, the learned sentencing judge found, I think correctly, that the appellant's actions were impulsive - in the sense of not being pre-planned - and that the appellant was on each occasion alcohol and/or substance affected. But I cannot accept that such action was to be explained by reduced intellectual functioning. Nor, in my opinion, was there anything in the psychological reports capable of sustaining the proposition advanced for the appellant that this was a case in which intellectual deficit combined with drug and alcohol use to bring about the offending. Ms Lechner hypothesised in her report that - it seems in addition to demonstrated intellectual deficit - the appellant might have 'some form of frontal lobe damage' which affected 'executive thinking skills' such as 'impulse inhibition'. But nothing suggests, as I understand it, that the psychological testing which was performed revealed any such damage. Hypothesis having a speculative quality is an unsound basis, in my opinion, upon which to conclude that the appellant's criminal acts were to be explained by impulsivity attributable to frontal lobe brain damage, this going to the appellant's moral culpability for the offending.

18 I turn to the issue of general deterrence. The submission made for the appellant was, as I have said, that the judge had undervalued the significance of the appellant's reduced intellectual ability in making the allowance which she said she did for that matter when considering general deterrence. Counsel relied upon passages in the reasons for judgment of Kirby P, as his Honour then was, in Champion[4].

19 In my opinion, there is nothing to the complaint. I agree with the submission advanced by counsel for the Crown that the sentences which were imposed below demonstrate that the learned judge must have given very considerable weight to the appellant's intellectual deficit in the sentencing synthesis when she came to consider the place of general deterrence.

20 I should add this. In light of what the psychologists' reports did and did not contain, I consider that counsel on the plea made as much of their content as could be made; and I think the learned sentencing judge gave as much weight to the reports as she could legitimately have done.

21 Counsel for the appellant submitted that the total effective sentence fell outside the range of a sound discretionary judgment when regard was had to the appellant's plea of guilty, his remorse, brain damage and resultant intellectual disability, the effect of the appellant's drug and alcohol addiction on his moral culpability, his unstable and impoverished and dysfunctional background, his HIV status, the circumstance that the offending was unplanned and committed under the influence of alcohol and drugs, and that at the time of sentence the appellant was taking antipsychotic medication.

22 In my opinion, the ground lacks substance. In the sentencing synthesis, the learned judge, in my opinion, rationally put into the balance the circumstances of the offences, which were intrinsically very serious, the appellant's very bad criminal record, and the matters which stood in mitigation. In terms, her Honour took into account, in an apparently sensible way, nearly all of the matters relied upon by counsel on the appeal. On its face, the sentence appears to me to adequately reflect matters standing in the appellant's favour. A few matters call for specific comment.

23 First, I do not consider, for reasons already explained, that her Honour undervalued the appellant's intellectual deficit in the sentencing synthesis.

24 Second, in my opinion, her Honour did not undervalue the revelation, made in counsel's plea, and unsupported by medical evidence, that the appellant was HIV positive. It was not said that the appellant was then suffering any symptoms of the disorder, or that symptoms were likely to develop so that life in prison would be any more difficult for the appellant than might otherwise be expected. Neither was it said that, if symptoms did develop whilst he was in prison, there might be any inadequacy of medical treatment.

25 Third, the appellant's moral culpability, in my opinion, was at its highest little affected by his drug and alcohol addiction.

26 Fourth, it appears that the appellant was receiving antipsychotic medication when seen by Mr Lechner in late November 2006. The reason was unstated. Probably it was part of a regime associated with the appellant being deprived of his drugs of choice. But, whatever the reason, it was not demonstrated that this made the appellant any less a proper vehicle for application of the ordinary range of sentencing considerations.

27 It was common ground, as the appeal proceeded, that the learned sentencing judge intended the appellant to serve, in all, 25 months' imprisonment on the second presentment and an added 12 months on the first presentment; that is, a total of 37 months.

28 In my opinion it is doubtful that there was any fault in form in the sentence which her Honour pronounced. I do not consider that the appeal should be allowed simply in order that her Honour's intent, which was in any event clear, should be made clearer still.

29 There are two matters to which I wish to briefly advert. The first concerns the reasons for sentence. Too often, unfortunately, this Court must consider sentencing reasons which are less than ideal. In this instance, to the contrary, the sentencing reasons were comptehensive, logical and clearly expressed. Just as, from time to time, this Court must be critical of reasons for sentence, so it should express its appreciation of good quality reasons; and I do so in this case.**

**30 Second, this appeal illustrates a problem which seems to me to arise too often: that is, that psychological (and psychiatric) reports are admitted on a plea which are not the subject of any cross-examination of the author or of careful analysis as to their possible significance in the sentencing process. Too often, it seems to me, such reports go well beyond the confines of expert opinion and, it might be said, simply become the unexamined substance of the plea itself.

31 Expanding upon what I have just said, I consider that too often the reports of psychologists and psychiatrists either do not state or ill-state any connection between a discerned psychological or psychiatric abnormality and the commission of the offences in respect of which sentence is to be passed; and too often the inadequacies of reports remain untested by cross-examination and are not even the subject of critical analysis by way of submission. The authorities now make it clear, if it was ever in doubt, that it is not simply the existence of some abnormal mental state or reduced intellectual functioning which is of relevance to important aspects of the Verdins analysis. Too often, the sentencing judge, and then this Court, is being presented with material which does not really address, or adequately address, issues which are critical. From my perspective at least, something needs to be done about it.

33 I agree, for the reasons given by the learned presiding judge, that the appeal should be dismissed.**

**34 There are two additional observations that I would make. The first is that, under ground 1, it was assumed on the appellant's behalf that the appellant's intellectual disability fell within the principle in Verdins' case, as it gave rise to impaired mental functioning which ought to have reduced the offender's moral culpability. I would not want to be taken as accepting that an intellectual disability will necessarily give rise to the conclusion, in all cases, that there was impaired mental functioning which should reduce the offender's moral culpability. Whether it does so or not will depend upon whether the conditions expressed in para [26] of the joint judgment in Verdins have been satisfied. Counsel assumed in the course of argument, but when pressed was unable to demonstrate, that the appellant's intellectual disability contributed to the commission of the crime so that his moral culpability was reduced.

35 The second matter I refer to is that the learned sentencing judge specifically stated that she had tailored her sentence to ensure that Mr Wise received the assistance which he needed, upon his release. What her Honour plainly had in mind, was the suggestion made by Ms Lechner in her report, that there should be a full assessment of Mr Wise's cognitive and adaptive living skills with a view to him becoming eligible for Disability Services and a Justice Plan. It is to be hoped that the objective which her Honour had in mind will be pursued when Mr Wise becomes eligible for parole.

36 I agree with the learned presiding judge, for the reasons he has given, that the appeal should be dismissed.

37 The order of the Court is that the appeal is dismissed.**

[1] R v Williams [2000] VSCA 174.

[2] [1996] VicRp 26; [1996] 1 VR 398.

[3] [2007] VSCA 102.

[4] (1992) 64 A Crim R 244, particularly at 254-255.