Ryder v The Queen [2016] VSCA 3

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 This is an unusual case. It is an appeal in relation to a sentence of imprisonment imposed by the County Court following a plea of guilty for an offence of incest committed by a 37 year old intellectually disabled Aboriginal man, with a tragic background, against his 20 year old married biological daughter, they having had no contact with each other from shortly after her birth until just before the offence. Neither party could point us to any truly comparable sentencing case.

2 On 5 May 2015, the applicant/appellant[1] ('the appellant') pleaded guilty in the County Court to one charge of incest occurring on 23 October 2014. Following a plea the appellant was sentenced to four years imprisonment with a non-parole period of two years.

3 On 2 June 2015, the appellant filed a notice of application for leave to appeal against sentence under s 278 of the Criminal Procedure Act 2009. The appellant sought leave to appeal on two grounds, namely that:

1. The learned sentencing judge erred:
   1. in concluding that the applicant's intellectual disability did not contribute to the offending; and
   2. in failing to mitigate sentence on account of that contribution.
2. The head sentence and non-parole period are manifestly excessive.

4 On 12 August 2015, the appellant was granted leave to appeal by Redlich JA on the second ground listed above, and his Honour deferred to this bench the question of whether leave should be granted on the first ground.

5 The prosecution was resolved on 13 March 2015 at committal mention stage with a plea of guilty to one count of incest.

6 The plea went forward on the basis of the following agreed summary of prosecution opening:[2]

1. The [appellant] has pleaded guilty to one charge of incest. The offending occurred on 23 October 2014.
2. The [appellant] was born on 28 October 1976 and was aged 38 years at the time of the offending.[3]
3. The [complainant] was born on 1 January 1994. At the time of the offending she was 20 years old, was 7 weeks pregnant and lived with her husband and children in Mill Park.
4. The [appellant] is the biological father of [the complainant] however the [appellant] has had no contact with her since she was one month old.
5. In early October 2014, [the complainant] commenced searching for her father and located him in Queensland. [The complainant] had discovered that the [appellant] had a history of violence and had been in jail for assaults. After making contact, the [appellant] decided to come to Victoria and stay with [the complainant] and her family at their home in Mill Park.
6. On 12 October 2014, the [appellant], his partner and their son arrived at the [complainant's] home and stayed in the spare bedroom. [The complainant] states 'I was really excited to see him here and finally meet him. This was the first time meeting my father. He was happy to see me to [sic] .... I was just so excited and happy to finally meet my real dad'.
7. On 23 October 2014, [the complainant] was alone at home with the [appellant]. The [appellant] approached her and said 'Give dad a hug'. [The complainant] agreed and hugged him. The accused left and came back a short time later asking for another hug. [The complainant] hugged the [appellant] again however this time the [appellant] began kissing her neck and had his hands around her waist. [The complainant] pushed the accused away, sat down and in a sarcastic way said 'if you're gonna be like that you may as well take me to your bedroom'. The [appellant] walked off but came back shortly after and asked [the complainant] to follow him to his bedroom, which she did.
8. [The complainant] and the [appellant] sat on the mattress and according to the [complainant] 'he very gently pushed me down onto the bed'. The [appellant] then pulled [the complainant's] pants off and moved her underwear to the side. She states 'I didn't say anything or do anything. I felt I had to cooperate and not say anything. I was worried I might get hurt. I thought that if I tried to stop him, he would get angry. I knew he had a very violent past and had been in jail for physical assaults. I didn't move'.
9. The [appellant] then undid his zip, pulled his penis out and inserted it into [the complainant's] vagina. Whilst having sex the [appellant] stated 'I love you forever'. The [appellant] then ejaculated inside [the complainant]. When he was finished he told [the complainant] to go and freshen up and he then left.
10. [The complainant] states 'I was very confused with what he said and I still am ... I felt gross that it was my Dad. I just wanted to get in the shower as I felt so dirty'.
11. [The complainant] contacted her husband ... and told him to come home. When he arrived, [the complainant] stated she '... was shaking and jumpy and extremely scared and dirty. I said to [my husband] 'while he's not here we need to leave'. I remember telling him stuff near his dad's house.' and she started crying. [The complainant's husband] contacted the police.
12. On 24 October 2014 the [appellant] was accused and arrested. After the caution, the [appellant] was asked about the allegation and stated 'She tried to crack onto me and I walked out. Yesterday she tried cracking onto me and tried to take me to her room. I cracked the shits and walked out ... but later stated, 'Ok, I'm gonna tell you. She made me have sex with her ... I tried to say no. I didn't want to lose her'.
13. During the record of interview, the [appellant] made no comment when asked about the comments he had made previously. He also made no comment in relation to the offending.

7 Prior to the plea hearing, the appellant's legal representatives referred him to a forensic psychologist, Dr Aaron Cunningham. Dr Cunningham assessed the appellant at the Metropolitan Remand Centre on 29 April 2015. He prepared a report dated 30 April 2015 for the purposes of the plea. A copy was served on the prosecution in advance of the hearing.

8 Because of the arguments advanced on the plea and before us, it is desirable to set out the entirety of Dr Cunningham's report. It reads:[4]

Thank you for referring Mr Ryder for psychological assessment. I assessed Mr Ryder at the Metropolitan Remand Centre on 29 April 2015. I understand that Mr Ryder has been charged with Incest. I understand that Mr Ryder's matter is listed for a plea on 5 May 2015.

Sources of information

In completing the current assessment, I noted the letter of referral, summary of the prosecution opening, criminal priors and letter prepared by Mr Ryder dated 5 January 2015. To assess for the presence of intellectual impairment, Mr Ryder was administered the Wechsler Adult Intelligence Scale. I have read and I am bound by the Expert Witness Code of Conduct.

Background

Mr Ryder is a thirty-eight-year-old male born in Queensland. He stated that his mother moved home frequently and he was raised across Queensland. He stated that his mother was a bad alcoholic who had 'boyfriend after boyfriend'. His father left the family when he was aged seven. He stated that he was his father's 'pride and joy'. He stated that he was never hit or yelled at when his father was present. However, after his mother partnered with 'Les', he became the 'black sheep'. He stated that he was to blame for all the family's problems and received physical abuse. He stated that his mother only cared for her next pension cheque for alcohol. The children would attend school with Weet-Bix and have Weet-Bix with water or powdered milk for dinner.

When Mr Ryder was aged eleven, he left the family home. He stated that he had enough of his mother's home and moved to live with his grandmother. He then formed a relationship with his grandmother's twenty-six-year-old neighbour. He remained in a relationship with this woman for nine months. He then lived on the streets and in youth hostels. At the age of fourteen, he began a relationship with [the complainant's mother] aged twenty-two. The couple had one daughter, [the complainant], aged twenty-one. He stated that [the complainant's mother] ended the relationship twenty-six days after [the complainant's] birth. He perceived that [the complainant's mother] had [the complainant] to receive the pension.

Mr Ryder lived in New South Wales for one month before returning to Queensland. He met his next partner, [name], on a train. The couple had a child, [name], aged twenty. He stated that [name] would not care for her children or [name]. He could no longer cope with caring for [name], her children and [name] and ended the relationship. He then had a relationship with [name]. He stated that the couple would regularly have sexual encounters with other people. He left [name] and began a relationship with [name]. The couple continued a relationship for four years and separated in 2002. He stated that he has one daughter, [name], aged seventeen from a prior one-night stand.

Mr Ryder moved to different accommodations in Queensland and lived in Darwin for a short time. He then returned to Queensland and met [the appellant's partner]. The couple has continued a relationship for four years and have one son, [name], aged two. He stated that [his partner] is a 'good girl'. The couple relocated to Victoria when [the complainant] made contact. However, he stated that [the complainant] was jealous of [the appellant's partner]. [The appellant's partner] was forced to leave [the complainant's] home and Mr Ryder stated that he was planning to return to live with [his partner]. He does not know why he went through with the offence behaviour and regrets his actions. He now wants nothing to do with [the complainant]. He stated that he is motivated to return to [his partner] and watch their son grow.

Education and Employment History

Mr Ryder attended 'too many primary schools' to remember. He attended Nambour High School and Cooroy State School and left during Year 8. He reported three years of chef employment and three years in plastering. He has received the disability support pension since 2001.

Medical History

Mr Ryder suffered a motor vehicle accident at the age of thirteen. He was pronounced dead on arrival at the hospital and spent three and a half weeks in a coma. He has suffered epilepsy since this accident. He suffered a fractured skull, broken jaw and back problems. He continues to suffer chronic pain.

Drug and Alcohol History

Mr Ryder used cannabis from the age of ten until two years ago. He reported infrequent use of alcohol.

Mental State Assessment

Mr Ryder presented to the assessment with grooming and hygiene in normal limits. He was cooperative and friendly throughout the assessment. He reported difficulty initiating and maintaining sleep. He sometimes wakes in a fright. He reported another incident where he died in 2012. He was in a coma for three weeks. He was not aware what was wrong with him at the time. He reported some paranoia. He has been diagnosed with bipolar disorder and prescribed Avanza and Epilim. He is administered Tramadol for pain. He was prescribed Seroquel and Endep.

In summary, Mr Ryder does not present with a mental illness. In my opinion, his prior reported mood disturbance is consistent with his impaired mental functioning.

Psychometric Assessment

Mr Ryder was administered the WAIS-IV to assess his level of cognitive functioning. The WAIS-IV is a standardised test of general intellectual functioning for individuals aged sixteen to eighty-nine-years. The WAIS-IV measures intelligence across four indices, the Verbal Comprehension Index, Perceptual Reasoning Index, Processing Speed Index and Working Memory Index. The WAIS-IV also generates an overall index of intellectual functioning in the Full-Scale-Score (FSIQ).

To ensure that Mr Ryder understood the tasks asked of him, he was administered several practice items for each subtest. When Mr Ryder was able to respond correctly to each practice item, he was administered the subtest items.

The Verbal Comprehension Index requires verbal reasoning, access to stored verbal knowledge and verbal expression. Subtests on this index assess verbal reasoning, word associations and the ability to describe the meaning of words. On the Verbal Comprehension Index, Mr Ryder scored better than 3% of his age peers where 97% of his age peers would do better.

The Working Memory Index requires the ability to temporarily retain information in memory and manipulate this information to produce a result. This ability requires attention, concentration and mental control. On the Working Memory Index, Mr Ryder performed better than 13% of his age peers, where 87% of his age peers would do better.

The Processing Speed Index requires visual perception and organisation, visual scanning and control of attention as well as a sustained effort for a two-minute period of time while working with simple visual material as quickly as possible. On the Processing Speed Index, Mr Ryder performed better than 2% of his age peers where 98% of his age peers would do better.

Mr Ryder's FSIQ was assessed as 65 within a range of 62-70. He performed better than 1% of his age peers where 99% of his age peers would do better. His overall thinking and reasoning skills were in the Extremely Low range. On the basis of this score, Mr Ryder would benefit from a referral to Disability Services for case management.

Telephone Interview with [the appellant's partner]

[The appellant's partner] stated that the couple has maintained a relationship for four-years. She stated that, in 2012, Mr Ryder began 'walking around in a daze' and could not recognise anyone. She stated that he was in a coma for three and a half weeks. She was not given an appropriate diagnosis for the episode. Mr Ryder had to learn to walk and talk after the coma. She described Mr Ryder as 'very loving' and 'very loyal'. She stated that Mr Ryder is a good father and partner. She stated that he has never demonstrated any forms of deviancy. She remains supportive of her partner.

Summary and Opinion

Mr Ryder is a thirty-eight-year-old male pleading guilty to Incest. Results of the mental state assessment were not consistent with the presence of a mental illness. Psychometric testing indicated cognitive function in the Extremely Low range.

On the basis of psychometric assessment, Mr Ryder's intellectual ability was measured in the bottom 1% of his age peers. He presented with a general impairment of thinking and reasoning ability. He reported significant instability in his childhood environment. He was exposed to physical abuse and parental alcoholism. He lacked support and structure. He left the family home at a young age and remained unstable in his accommodation. He reported a series of relationships with significantly older women. He has several children with whom he does not maintain contact. In the context of his intellectual functioning, he would likely experience increased disinhibition and reactive moods. In my opinion, Mr Ryder's reported mood disturbance is consistent with impaired intellectual functioning and environmental instability. In my opinion, Mr Ryder's intellectual impairment likely contributed to impairing his judgment with regard to his offence behaviour.

Mr Ryder presents with protective factors that may reduce his risk and improve his prospects for rehabilitation. He presents with a supportive partner. He is motivated to maintain stability in the community.

Whilst disposition is solely a matter for the courts, from a psychological perspective, Mr Ryder would benefit from a disposition that facilitated his rehabilitation. He would benefit from maintaining the support of his partner in the community. He would benefit from a referral to Disability Services to improve his community support. Engaging with Disability Services and increased community support would reduce his risk and improve his prospects for rehabilitation.

9 Written submissions from counsel then appearing for the appellant[5] were filed for the plea. They were mainly in point form, but were quite extensive. They indicated that the appellant was an Aboriginal person originally from Queensland. They cited Bugmy v The Queen[6] in relation to the appellant's being an Aboriginal person with a traumatic background. They expanded upon the relationship the appellant had had with his 26 or 27 year old neighbour when he was 11 years of age. They recorded that a government department became 'involved', but regarded the adult woman in question 'as a de-facto step-mother'. These and certain other details of the appellant's background were additional to those contained in Dr Cunningham's report.

10 In the written submissions, under the heading 'Psychological Factors', the following appeared:

a. R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.[7]

b. Intellectual disability;

c. Casually [sic scil causally] linked to offending by psychologist;

11 As indicated above, counsel for the Director of Public Prosecutions ('the DPP') opened the matter in accordance with, and tendered, the agreed summary of prosecution opening. She confirmed that no application would be made for registration of the appellant under the Sex Offenders Registration Act 2004.

12 When counsel for the appellant rose to begin his plea, the sentencing Judge informed him that he had received and considered the written submissions and Dr Cunningham's report. He asked counsel whether he was tendering the report. Counsel answered in the affirmative. There was no objection, nor any comment, by counsel for the DPP. The report was tendered.

13 The following exchange then took place between the Judge and the appellant's counsel:[8]

HIS HONOUR: Can I just ask you a couple of things about that report?

COUNSEL: Yes, your Honour.

HIS HONOUR: I may be wrong but his criminal history suggests to me that he has had drug problems. There are prior convictions to do with - - -

COUNSEL: Yes. Yes, I'm told there's none current. Alcohol seems to - - -

HIS HONOUR: Possession of dangerous drug, possession of pipe used in connection with smoking dangerous drug, possession dangerous drug and so on. That would indicate to me that the history that was given to Dr Cunningham wasn't exactly accurate. Is that right or not?

COUNSEL: Look, there's recollection difficulties with a number of the matters in the criminal history that I had in terms of obtaining specific instructions of what related to what and particularly in relation to the drug issues and I noted what your Honour has also pointed out about there being matters within the history that would suggest - more than suggest drug use. Other than to say my instructions are that there's no current drug issues, I'm not sure I can take that matter too much further with your Honour.

HIS HONOUR: Well it would suggest he's been less than candid in the history to Dr Cunningham.

COUNSEL: Well Mr Cunningham was also in possession of the criminal priors - - -

HIS HONOUR: I know that. There might be another suggestion I could make, that is, Dr Cunningham was not as thorough as perhaps he should have been. I don't know. Second point is - excuse me - in the summary of opinion, he says in the second paragraph last line, 'In my opinion, Mr Ryder's intellectual impairment likely contributed to impairing his judgment with regard to his offence behaviour.['] I'm not sure on what basis he comes to that conclusion.

COUNSEL: Yes, it's not a point that's taken too much further and - - -

HIS HONOUR: Well you do rely on Verdins in your submissions, are you abandoning that point?

COUNSEL: It's perhaps not the strongest link and the lack of explanation doesn't assist the - perhaps the causal connection required particularly under limb one - - -

HIS HONOUR: Well it doesn't - - -

COUNSEL: - - - of Verdins.

HIS HONOUR: Given what he said in the record of - or sorry, given what he said prior to the ... record of interview, that doesn't seem to be consistent with just that general conclusion which is not explained in the report how the conclusion is reached. I won't tell you how to run the plea, you can do whatever you like but it seems to me that really you're - the point you're making is what's known as a Muldrock point, that is, he's a person of limited intellectual capacity and that's the point you're making.

COUNSEL: Yes.

HIS HONOUR: Unless you can convince me otherwise - - -

COUNSEL: No.

HIS HONOUR: - - - I just can't see there's any basis upon which I could apply Verdins.

COUNSEL: No.

HIS HONOUR: In any of its forms on what is before me from that report.

COUNSEL: No, well there's no particular diagnosis of any psychological or psychiatric disorder, it's just the intellectual impairment that is operative upon Mr Ryder, Your Honour's right.

HIS HONOUR: In fact he doesn't present with a mental illness, he - and at Muldrock he doesn't talk about just about mental illness but talks about people with reduced intellectual capacities and Your Honour[9] is certainly in the lowest - - -

COUNSEL: Yes.

HIS HONOUR: - - - range. ...

14 Counsel and his Honour then turned to other aspects of the plea. Towards the end of the plea hearing, the Court was informed that the offence was committed while the appellant was on parole from a sentence of imprisonment imposed in Queensland, that a warrant had been issued on 3 October 2014 for breach of that parole,[10] and that the appellant 'owed' 282 days of the custodial sentence. A letter to that effect from the Queensland Police Service was handed up and made an exhibit.[11]

15 Immediately following the plea hearing, the Judge delivered his decision. He made the following sentencing remarks:[12]

1. Paul Robert Ryder, you have pleaded guilty to one charge of incest. It occurred on 23 October 2014. You have admitted your very extensive criminal history which no doubt you have heard me discuss with counsel and I will not go through all the various offences that you have been charged and convicted of. They include, as I have said, aggravated assault on a female and also an indecent assault along with many other offences of violence, dishonesty and seemingly drugs.
2. The facts of the matter are set out in the agreed summary, Exhibit 1, I will not now refer to them. Any reader of these reasons can refer to that exhibit to place a sentence in its factual context.
3. At the time of the offending you were 38,[13] as you still are. You are the biological father of the victim, she was aged 20 at the time and seven weeks pregnant. Prior to the interview with the police you seemed to try and shift blame onto her as set out in paragraph 12 of the summary.
4. One victim impact statement was tendered and excluding the inadmissible parts I have read that and considered its content. All the material relied on today, apart from one or two matters, have been provided to me prior to my entry to court and I have read it all before coming in.
5. On your behalf your counsel, Mr Bloemen, filed very extensive written submissions and supplemented them with oral submissions to me. In addition a report from Dr Aaron Cunningham, a psychologist was tendered. It was dated 30 April 2015. Both the written submissions and that report set out your very tragic upbringing. Really, it might not be any surprise that you have turned out the way you have given that but sooner or later you are going to have to take responsibility for your own life. I will not go through that at this stage as it is set out in both of those documents.
6. In the report of Dr Cunningham you said you do not know why you went through with the offending here and you regretted your actions. You did not present with any mental illness. Upon a psychometric assessment it was found that your intellectual ability was measured in the bottom one per cent of your age peers. You presented with a genuine impairment in thinking and reasoning. Dr Cunningham concluded that your intellectual impairment likely contributed to impairing your judgment with regard to the offence behaviour but as I discussed with counsel during the plea there is no basis, really, upon which it is set out that Dr Cunningham could come to that conclusion, particularly in light of what you said to the police.
7. In relation to the drug and alcohol history, it just says you used cannabis from the age of ten until two years ago and you reported infrequent use of alcohol. Your criminal history suggests to me that your drug history is much more extensive than that.
8. It says that you presented with a supportive partner and wanted to maintain stability in the community. Your partner attended court but because she had a young child, stayed outside.
9. Mr Bloemen submitted that I should take into account your plea of guilty, which I accept was entered at the earliest opportunity and particularly in these types of matters where it is often hard to get guilty pleas I give you a full discount for its benefit. It is an acknowledgement of remorse and responsibility by you for your actions and also has the effect of there is not a jury trial during which the victim would have to give evidence.
10. I am really not in a position to make any finding as to your rehabilitation given your criminal history but I do take into account your traumatic background, the fact that you are an aboriginal person and the fact that you are intellectually impaired as part of your background. I have taken all of those factors into account.
11. It has been submitted that I could consider a community corrections order. My view is that your offending is too serious for that and your prior criminal history, shows you have on, a number of occasions, just disregarded court orders. It is not the appropriate step to take here. I have considered all the matters under s.5 of the Sentencing Act and I have concluded that a sentence of imprisonment is the only option here.[14]
12. Because of your criminal history I am concerned about protection of the community. Your offending here just seems totally outrageous. That the daughter you have not seen, on the first opportunity that you see her that you had sex with her when she is pregnant.
13. I take into account general deterrence. That is, I have to impose a sentence that deters other people from committing such offences. Specific deterrence is also a very important sentencing consideration here given your history. Your plea of guilty, totality and proportionality, the fact that you have spent your time in custody, your background and your intellectual disability.
14. On the charge of incest that you have pleaded guilty to I sentence you to a term of imprisonment of four years with a non-parole period of two years.

16 For convenience, we repeat the terms of proposed ground 1:

1. in concluding that the applicant's intellectual disability did not contribute to the offending; and

b. in failing to mitigate sentence on account of that contribution.

17 Proposed ground 1 is framed against the well-established principles comprehensively summarised by this Court in Verdins whereby impaired mental functioning on the part of an offender may be relevant to the determination of the appropriate sentence in a particular case.[15] Frequently, where these principles are found to apply, the effect will be to mitigate sentence on the basis that the offender's moral culpability is reduced and/or on the basis that the need for general or specific deterrence is moderated or eliminated.[16] These principles are also the subject of the High Court decision in Muldrock v The Queen.[17] The references made by the sentencing Judge to 'Verdins' and to 'Muldrock' were references to these authorities.

18 The Judge did not actually arrive at the negatively expressed conclusion posited in proposed ground 1(a), namely that the appellant's intellectual disability 'did not contribute to the offending'. On the other hand, it is clear that the Judge was not satisfied that the appellant's disability had contributed to the offending. To the extent that the appellant had sought mitigation of sentence on the basis that his intellectual disability had contributed to the offending, the onus had been on the appellant to satisfy the Judge that it had so contributed.[18] The real question thrown up by proposed ground 1(a) is whether the Judge erred in the way he addressed this issue.

19 The appellant need not go so far as to persuade us that the only conclusion open to the Judge was to accept the contention that his disability contributed to the offending. The appellant complains in proposed ground 1(a) that the Judge erred 'in' concluding as his Honour is said to have concluded. Such a complaint covers a complaint that the Judge erred in the manner in which he addressed himself to the issue, for example by misdirecting himself as to the law or the principles applicable, by mistaking the relevant facts, by failing to consider matters that should have been considered, by considering matters that should not have been considered or by giving excessive or insufficient weight to matters. An error of any of those kinds may constitute specific error sufficient to warrant appellate intervention.[19] In this case, the submissions of counsel for the appellant included arguments that specific errors of several of these kinds had occurred.

20 In our respectful opinion, as we will explain, the sentencing Judge did misdirect himself as to the applicable law and principles.

21 In order to demonstrate that legal error, it is necessary to take into account the exchange between the Judge and counsel set out above.

22 It is only in exceptional circumstances that appellate courts will take into account pre-decisional exchanges between a sentencing judge and counsel for the purpose of showing error.[20]

23 In R v Egan,[21] a decision of the Court of Criminal Appeal of New South Wales, R A Hulme J (with whom Leeming JA and Button J agreed) said:

Remarks made by a judge prior to the delivery of judgment on sentence are seldom of use in identifying appellable error. It is accepted that in the exchanges with counsel in the course of submissions a judge will often express preliminary or tentative views that might not ultimately reflect the judge's concluded view: see, for example, the cases cited in Ghobrial v R.[22]

In Egan the circumstances were found to be exceptional, and the Court did take into account an exchange between the sentencing judge and counsel.

24 A similar conclusion was reached by the same Court in RCW v R (No 2).[23] Again, R A Hulme J was a member of the Court. Speaking with the concurrence of Bathurst CJ and Adams J, R A Hulme J said:[24]

Before turning to the proceedings on sentence it is worth being clear about the utility of doing so. 'Normally this Court will not find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision': R v Pham.[25] However, there are circumstances in which there may be some utility in having regard to statements from the bench during the course of submissions; for example, when they can assist in elucidating abbreviated statements appearing in remarks on sentence: Peiris v R.[26] In my view there is also some utility where during the course of submissions a judge exposes his or her reasoning and announces a concluded view which is ultimately maintained without any qualification of the reasoning in an immediately ensuing ex tempore sentencing judgment.

25 In the present case, the exchange between the sentencing judge and counsel does assist in elucidating abbreviated statements which appear in his Honour's remarks on sentence. Indeed, paragraph 6 of his Honour's sentencing remarks incorporates by reference the discussions with counsel which we have earlier set out relating to Dr Cunningham's conclusion that the appellant's intellectual impairment contributed to the offence behaviour.

26 During the plea, the sentencing Judge said, in effect, that the appellant's reliance on Verdins was misconceived and that what the appellant really relied upon was what the Judge called 'a Muldrock point'. Counsel accepted the sentencing judge's assertions which were premised on an assumption that Verdins and Muldrock addressed different issues and involved legal principles which were different if not mutually exclusive.

27 It is necessary to have regard to the quoted extract from the discussion between the sentencing Judge and counsel for another reason as well. In its written case, the respondent submitted that, during the exchange in question, defence counsel had abandoned the submission relating to Verdins which had been contained in the written submissions filed on the plea.[27] In his initial oral submissions before us, the respondent's counsel reiterated this abandonment contention, citing Romero v R.[28] Later, upon being pressed by us, the respondent's counsel conceded that it was 'probably' right to say that the Verdins submission had not been abandoned before the County Court.[29] This point is intertwined with the point of principle to which we now turn.

28 In our view, his Honour was wrong when he told counsel that reliance on Verdins was a misconception and that he really had a 'Muldrock point'. The assumption that Verdins and Muldrock set out different legal principles is not correct. This Court has expressly held that there is no inconsistency between Verdins and Muldrock.[30] The principles applicable to mental impairment due to mental illness are the same as the principles applicable to mental impairment due to mental retardation. Verdins itself made that clear.[31] There is no separate category of case to which Muldrock applies but Verdins does not. There is no basis for the distinction drawn by the sentencing Judge. Verdins does apply to mental impairment by reason of intellectual disability or retardation.

29 Counsel for the appellant acquiesced in what was put to him by the sentencing Judge, but he never abandoned reliance on Verdins. The appellant should not be shut out from reliance on proposed ground 1 on the basis that such reliance would be inconsistent with the manner in which the plea was conducted. The sentencing judge expressed an emphatic legal conclusion which counsel accepted. He should not be prevented now from contending that that conclusion was wrong.

30 The error of the Judge is caught by proposed ground 1 because it is an error that was capable of distorting the Judge's approach to the question of contribution by the appellant's intellectual impairment to the offending, and thus to the question of whether sentence should be mitigated on account of any such contribution. Relevant error having been established, the appellant should have leave to appeal on proposed ground 1. Whether the appeal should be allowed depends upon whether we are satisfied a different sentence should be imposed.[32]

31 In Muldrock the High Court considered the position of an offender with an intellectual disability similar to that of the appellant. After quoting passages from R v Mooney[33] to the effect that general deterrence may have very little weight in the case of an offender suffering from a mental disorder or abnormality, the Court said:[34]

A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending.

32 In O'Neill this Court emphasised that where an offender seeks to rely upon Verdins so as to reduce moral culpability, or to moderate or eliminate the need for general deterrence or specific deterrence, it must be shown that there is a connection between impaired mental functioning and moral culpability or the need for general or specific deterrence.[35] In order to show this connection the relevant impairment of mental functioning must affect the offender's ability to appreciate wrongfulness, obscure the relevant intent, or impair the offender's ability to make calm and rational choices or to think clearly.[36]

33 The sentencing Judge, in the course of the plea, expressed himself to be dissatisfied with what Dr Cunningham had said in relation to the requisite connection and he incorporated that conclusion in his sentencing remarks.

34 The material in Dr Cunningham's report was not as detailed or as directly related to the relevant issue as the material had been in Muldrock. It seems to us, however, that in the context of what Dr Cunningham had said as to the offender's inability to say why he went through with the offending behaviour, the offender's extremely low thinking and reasoning skills, the offender's very disturbed upbringing, and the offender's history of significant mood disturbance including at least one instance of a coma or coma-like state, Dr Cunningham's eventual conclusion that there was a connection was sufficiently explained. Unlike the sentencing Judge, we would not reject or significantly discount Dr Cunningham's conclusion by reason of the appellant having given a false version of events to the police initially. In these respects we are particularly mindful of the High Court's observations, in the passage we quoted earlier from Muldrock, about establishing a connection where the offender is intellectually disabled. The relevant conclusion by Dr Cunningham, to which we are referring, and which we would accept, given what the High Court has said, is as follows:

In the context of his intellectual functioning, he would likely experience increased disinhibition and reactive moods. In my opinion, Mr Ryder's reported mood disturbance is consistent with impaired intellectual functioning and environmental instability. In my opinion, Mr Ryder's intellectual impairment likely contributed to impairing his judgment with regard to his offence behaviour.

35 In the circumstances, it seems to us that Mr Ryder's moral culpability is reduced, as is the weight to be given to general deterrence.

36 Addressing current sentencing practice, we repeat the observations made at the outset that this case is most unusual and that neither counsel was able to direct us to any truly comparable case. Nor have we ourselves been able to locate any truly comparable Victorian case.

37 We have, however, gained some limited assistance from considering two interstate sentencing judgments on incest offences involving adult complainants.[37] The sentencing Judge was not referred to these cases.

38 The case of The Queen v WN[38] in Queensland has some similarities to this one. That case involved an intellectually impaired offender who was guilty of one count of incest with his 22 year old daughter, from whom he had been estranged until she was 16 years' old. The sentence imposed was four and a half years imprisonment, suspended after 18 months, with an operational period of five years, where the maximum penalty under the Queensland legislation was life imprisonment. An aggravating feature in that case was a finding that there had been an element of exploitation in the conduct of the offender, in that the daughter was suffering from psychological difficulties that made her vulnerable. She had recently commenced living with the offender, and he had been providing some form of parental care to her. The offender also had an earlier conviction for consensual incest with his adult sister. These features are absent from the appellant's case.

39 There is also a relevant Western Australian case: Smith v Western Australia.[39] There, the offender committed multiple sexual offences against three complainants, one of whom was his 19 year old daughter from whom he had been estranged. The 19 year old daughter had recently moved into his family home and she was considered to be a consenting party to the incest. The offending had occurred over a period of months, with the offender being aware that his conduct was wrong. On a sentence appeal, the offender fell to be re-sentenced by the Court of Appeal of Western Australia. The offending was held to be at the lower end of seriousness, but the majority considered that nevertheless a sentence of imprisonment was required. In the context of a three year maximum penalty under the Western Australian legislation for incest committed with an adult, a period of 12 months imprisonment was ordered for each of four counts of vaginal penetration, and 8 months for each of two counts of fellatio, all to be served concurrently. All the terms of imprisonment were suspended.

40 Returning to the present case, we have had regard to everything contained in the summary of prosecution opening, the transcript of the plea hearing and the sentencing Judge's remarks on sentence.

41 We acknowledge the substantial mitigating factors relied on by the appellant, including his traumatic upbringing, his disadvantaged background,[40] the fact that there was only one occurrence and his early guilty plea. We have regard to the principles of proportionality and parsimony. We also take into account the principle of totality with regard to the unexpired portion of the appellant's Queensland sentence.[41]

42 The appellant also relies on the absence of violence or force. We accept that the plea proceeded on the basis that the appellant was unaware of any lack of consent on the part of his daughter. Counsel for the respondent submitted before us:[42]

... I would make the concession, your Honour, that the issue of consent and the politics of their relationship, which may well have been a little complicated, could easily be missed by someone who was functioning at his level.

43 Counsel for the appellant also emphasised that the appellant had had no parental relationship with the complainant until she made contact with him as an adult, so the breach of trust commonly involved in the commission of an offence such as incest is arguably not present to the same degree.

44 On the other hand, we have considered the admissible parts of the victim impact statement of the complainant and we note that, understandably, the offence has had a seriously detrimental impact on her. As a result of the offence, the complainant has lost the chance to build a meaningful relationship with her biological father.

45 The appellant has an extensive criminal history which includes, as the sentencing Judge observed, 'aggravated assault on a female and also an indecent assault along with many other offences of violence, dishonesty and seemingly drugs'.[43] In view of the appellant's criminal record, specific deterrence remains important, notwithstanding the appellant's intellectual disability.

46 The offence itself is a serious one, as indicated by the maximum penalty of 25 years prescribed by Parliament. The complainant was not a child, but she has been significantly affected by the offending behaviour. We do not accept that the period of imprisonment already served is sufficient and that the appellant should be immediately released, as his counsel contended before us.

47 It is noteworthy that in the two interstate cases to which we have referred, less severe sentences were imposed for what seems to us to have been more serious offending of a similar type.

48 In all the circumstances we are persuaded that a different sentence should be imposed. We consider that the appellant should be resentenced to a term of three years imprisonment with a non-parole period of 18 months.

49 In the circumstances it is unnecessary to address ground 2.

50 For the reasons set out above, leave to appeal on ground 1 will be granted and the appeal will be allowed on that ground. We will re-sentence the appellant to a term of three years' imprisonment and fix a non-parole period of 18 months. We will declare under s 6AAA of the Sentencing Act 1991 that, but for the plea of guilty, we would have re-sentenced the appellant to imprisonment for 4 and a half years with a non-parole period of 3 years. An adjusted pre-sentence detention declaration will be made as appropriate.

[1] Mr Ryder is an applicant for leave to appeal in relation to the first ground of appeal alleged in his notice of application for leave to appeal dated 2 June 2015, and an appellant in respect of the second ground of appeal. For ease of reference, Mr Ryder will be referred to as the appellant for all purposes in this judgment.

[2] Exhibit 1 tendered by the Director of Public Prosecutions on the plea (footnotes omitted).

[3] This appears to be an error, as the appellant was 37 years old at the time of the offence, but was very shortly due to turn 38 years old.

[4] Exhibit R1 on the plea. Names of children and names which could identify children have been edited.

[5] Not counsel who appeared for the appellant in this Court.

[6] (2013) 249 CLR 571.

[7] Reported as R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[8] Transcript of proceedings, DPP v Ryder (Unreported, County Court of Victoria, Judge Montgomery, 5 May 2015), 6-8.

[9] There appears to be an error in the transcript here. It is assumed this the passage should read '... and your client is certainly in the lowest - - - range'.

[10] The alleged breach may have been constituted by the departure of the appellant from Queensland, as distinct from the commission of any criminal offence.

[11] Exhibit 3 on the plea. A copy of the warrant itself was also provided to this Court on the appeal.

[12] DPP v Ryder (Unreported, County Court of Victoria, Judge Montgomery, 5 May 2015) ('Reasons').

[13] As indicated above, Mr Ryder was actually still 37 at the time of the offence.

[14] The suggestion that the appellant should be dealt with by way of a Community Correction Order was not pursued on the appeal on the basis that it would be 'pointless'. Rather, counsel for the appellant now urges that the appellant be immediately released from his current sentence of imprisonment: Transcript of the appeal, 37-8.

[15] DPP v O'Neill [2015] VSCA 325 [43] ('O'Neill').

[16] Sometimes, however, especially if the Court considers that the offender's intellectual disability is such as to increase the significance of the need for community protection, there may be, in the end, no mitigation of sentence: See Bugmy v The Queen (2013) 249 CLR 571 [44]; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476-77; Monfries v The Queen (2014) 68 MVR 385 [64].

[17] [2011] HCA 39; (2011) 244 CLR 120 ('Muldrock').

[18] R v Romero [2011] VSCA 45; (2011) 32 VR 486 [18] (Redlich JA); Charles v The Queen [2011] VSCA 399; (2011) 34 VR 41 [162].

[19] House v The King [1936] HCA 40; (1936) 55 CLR 499; R v Taylor [1958] VicRp 46; [1958] VR 285, 289; Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 617-618 [42]; Primmer v The Queen (2015) 71 MVR 300, 309 [36] (NSWCCA). See also A Freiberg, Fox and Freiberg's Sentencing (Thomson Reuters, 3rd ed, 2014) [17.70], [17.80].

[20] Of course, there is no difficulty in having regard to exchanges between the bench and bar if it is asserted that the exchange will demonstrate that one of the parties was denied procedural fairness: Ng v The Queen [2011] NSWCCA 227; (2011) 214 A Crim R 191 [41]-[43].

[21] [2013] NSWCCA 196 [84] ('Egan').

[22] [2012] NSWCCA 221 [56].

[23] [2014] NSWCCA 190.

[24] Ibid [37]. Cf Zaky v The Queen [2015] NSWCCA 161 [37]-[42]; A Freiberg, Fox and Freiberg's Sentencing (Thomson Reuters, 3rd ed, 2014) [17.80] fn 239.

[25] [2005] NSWCCA 94 [11] (Wood CJ at CL).

[26] [2014] NSWCCA 58 [67] (Leeming JA).

[27] Respondent's written case, [3.3]. See also at [3.4].

[28] [2011] VSCA 45; (2011) 32 VR 486.

[30] Tran v The Queen [2012] VSCA 110; (2012) 35 VR 484, 498-93 [15]-[26]; DPP v Sokaluk (2013) 228 A Crim R 189 [38]-[41].

[31] See Verdins [2007] VSCA 102; (2007) 16 VR 269, 273 [17], referring to R v Yaldiz [1998] 2 VR 376, 381 (Batt JA). Note also Primmer v The Queen (2015) 71 MVR 300 (NSWCCA); Monfries v The Queen (2014) 68 MVR 385 (ACTCA).

[32] Section 281(1)(b) Criminal Procedure Act 2009.

[33] R v Mooney (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978) cited in R v Anderson [1981] VicRp 17; [1981] VR 155, 160.

[34] Muldrock [2011] HCA 39; (2011) 244 CLR 120, 139 [54]-[55] (citations omitted).

[35] O'Neill [2015] VSCA 325 [74].

[37] The limitations on the proper use of comparable cases and sentencing statistics in sentencing appeals have been considered recently in Bui v The Queen [2015] VSCA 313, especially [27] and in R v Pham (2015) 325 ALR 400, especially [26]-[28], [49]-[50].

[38] [2005] QCA 359.

[39] [2012] WASCA 239.

[40] See Bugmy v The Queen (2013) 249 CLR 571; and see generally DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457.

[41] Cf Morgan v The Queen (2013) 40 VR 32. Due to the automatic cancellation of parole orders under s 209 of the Corrective Services Act 2006 (Qld), there is no impermissible speculation as to future executive action.