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[2021] VSCA 218
General information, not legal advice.
Court of Appeal (Vic)
2021-08-10
Priest JA, Kennedy JA
Original judgment source is linked above.
DPP v Stevens [2020] VCC 936 (Judge Mullaly)
CRIMINAL LAW - Appeal - Sentence - Aggravated burglary and associated offences - Intellectual disability and deprived background - Serious prior convictions - Grim prospects of rehabilitation - Totality - Whether sentence of 10 years and 9 months' imprisonment with non-parole period of 8 years and 4 months manifestly excessive - Appeal allowed - Appellant resentenced to nine years' imprisonment with non-parole period 6 years.
1 Now aged 35 years,[1] the appellant has an extremely low intellectual capacity. Intellectual testing using the Wechsler Adult Intelligence Scale (WAIS IV) indicates that he has a full-scale IQ of 60, placing him at the 0.4th percentile, where 99.6 per cent of his age-related peers would do better.
2 Significantly, the appellant has a worrying criminal history, commencing in the adult jurisdiction in 2005, when he was aged 19 years.[2] Thus, on the plea he admitted a criminal record which contained findings of guilt or convictions for a range of offences, including recklessly causing injury (2005); intentionally causing injury (2005); assault with a weapon (2006); possessing a controlled weapon (2009); theft (2010 and 2011); aggravated burglary (2011); indecent assault (2011); making a threat to kill (2011); and entering a private place without authorisation (2018). Further, he has breached community based orders, community correction orders ('CCOs') and conditions of parole. As will become clear, the appellant's convictions for aggravated burglary, indecent assault and making a threat to kill in 2011, are of particular relevance.
3 This appeal, brought pursuant to leave earlier granted,[3] concerns sentences imposed upon the appellant by a judge in the County Court at Geelong on 26 June 2020.
4 Hence, on 25 May 2020, the appellant pleaded guilty to aggravated burglary[4] (charges 1, 3 and 8); theft[5] (charges 2, 4 and 7); contravening a prohibition order[6] (charges 5 and 11); obtaining property by deception[7] (charge 6); common assault[8] (charge 9); and recklessly causing injury[9] (charge 10).
5 Following a plea, the judge sentenced the appellant to a total effective sentence of 10 years and nine months' imprisonment, with a non-parole period of eight years and four months, in accordance with the following table:
12 years 19 months' imprisonment with a non-parole period of 10 years and 10 months.
6 Leave to appeal was granted 'on the papers' on two grounds which contend, first, that the sentencing judge failed properly to apply the principle of totality; and, secondly, that the sentence on each charge of aggravated burglary is manifestly excessive, in that the judge failed to give adequate weight to the appellant's intellectual disability and to his 'experience of profound deprivation consistent with the principles in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571'.
7 Having now had the benefit of full oral argument, we are of the view that the appeal should be allowed and the appellant resentenced to a total effective sentence of nine years' imprisonment, with a non-parole period of six years, in the manner set out below.[10]
8 Aspects of the appellant's present offending are quite disturbing. So that its seriousness may be appreciated, it is convenient to reproduce the salient parts of the Summary of Prosecution Opening:[11]
Introduction:
1. The [appellant] was 33 years of age at the time of the relevant offending.
2. On 14 and 15 April 2019 the [appellant] committed a series of offences including three aggravated burglaries on properties in Grovedale and Jan Juc.
3. He was apprehended at the last scene of offending and taken into police custody.
Offending (165 Grove Road):
4. On 14 April 2019 at approximately 1.30 am the [appellant] entered a property at 165 Grove Road, Grovedale via an unlocked side door.
5. At the time of entry the property owners Sandra and Greg Bee were home asleep upstairs.
6. CCTV footage obtained from the property showed the [appellant] to activate the outside sensor light at the side of the house. He then entered the property wearing a mask, gloves, black jumper, black pants and sneakers.
7. The [appellant] remained inside the property for approximately 45 minutes. During this time the [appellant] accessed a computer belonging to the home owners.
8. When Sandra Bee awoke in the morning she noticed that several internal doors which were supposed to be closed over night were open. Together she and husband Greg Bee checked the CCTV footage which revealed the [appellant]'s offending (Charge 1 - Aggravated Burglary).
9. Greg Bee later discovered that credit cards, including an ANZ bank card and an amount of cash had been taken from his bag (Charge 2 - Theft).
Offending (170 Grove Road):
10. In the early hours on 14 April 2019 Philip Day and Lily Meloni were asleep in their home at 170 Grove Road, Grovedale. Also sleeping at the property was Jack Ha, a 16-year-old male.
11. At approximately 3.00 am Day awoke to the sound of a gate rattling and noticed that the outside security lights had come on. He looked out the window and initially believed the disturbance to be caused by a possum.
12. Day returned to bed however a few minutes later the sensor lights were re-activated. He again looked outside but was unable hear anything. He returned to bed and a few moments later heard a light crunching noise on the [scoria] outside. Believing it to be caused by a possum, Day went back to sleep.
13. At approximately this time the [appellant] entered the property via a glass sliding door (Charge 3 - Aggravated Burglary).
14. When Day awoke in the morning he noticed the glass door at the side of the house was open. He walked outside and observed that the side gate which was usually kept shut was also open. He yelled out to Meloni that it appeared as though someone had been in the house.
15. Meloni inspected her purse and discovered that her ANZ bank card and an amount of cash was missing (Charge 4 - Theft).
16. Meloni also observed a small piece of latex glove to be stuck in the zipper of her handbag.
17. At about midday on 14 April 2019 Day and Meloni reported the incident to police and handed them a plastic bag containing the small piece of latex glove.
Further offending - 14 April 2019:
18. Subsequent police investigation revealed that the ANZ bank card stolen from Greg Bee was utilised at 10.43 am on Sunday 14 April 2019 at Woolworths, Waurn Ponds. CCTV footage obtained from Woolworths shows the [appellant] utilising the card at the self-service check out to purchase a can of 'Monster' drink (Charge 6 - Obtain property by deception). The [appellant] is observed to be wearing the same clothing as worn during the Aggravated burglary at 165 Grove Road Grovedale.
Offending - 15 April 2019:
19. At approximately 5.00 am on Monday 15 April 2019 Brooke Murphy left her home at 4 Coffey Court Jan Juc to go to the gym. When she left, her partner Charles Bowen and their 9 year-old daughter remained asleep inside.
20. Sometime in the hour thereafter the [appellant] entered the property through an unlocked door (Charge 8 - Aggravated Burglary).
21. When Murphy returned home at approximately 6.10 am she entered her house, looked down the hallway to the living are and saw a figure sitting on the couch. She assumed it was her partner Bowen.
22. Murphy said, 'Oh you're up early', at which point the [appellant] stood up, jumped over the couch and ran through the rear sliding door. Murphy observed the [appellant] had been using her partner's computer.
23. The [appellant] ran to the left side of the rear of the property. As he did so Murphy ran through the front door in an attempt to cut him off at the front of the property.
24. The [appellant] jumped on a pushbike at the side of the property and started to peddle away. Murphy attempted to knock the [appellant] from his bike at which time he turned and said to her 'they made me do it'.
25. Murphy threw an empty coffee cup at the [appellant] which hit him in the shoulder. She yelled at him saying, 'who made you do it, what's your name and what are you doing in my house'.
26. Eventually Murphy was able to apprehend the [appellant] by the shoulders as she screamed at him. The [appellant] said to Murphy that he had a gun in his [hand] and gestured his finger in a gun motion.
27. The [appellant] told Murphy his name was Matthew Stevens and asked her not to call police. He was wearing a mask which covered his face from the eyes down. The [appellant] was also wearing a surgical glove which was blue in colour.
28. Murphy continued to restrain the [appellant] as nearby neighbours who had heard the commotion came to help.
29. Soon after the [appellant] suddenly stood up, [he] told Murphy to keep the pushbike and started to walk off. The [appellant] then broke into a run and Murphy again ran after him.
30. Around this time Murphy's friend Pam Seidel with whom she had been at the gym, drove into the court. Murphy yelled at her to chase him. Other neighbours were also assisting to chase the [appellant].
31. Eventually the [appellant] reached nearby Muirfield Street at which point Murphy was able to again jump on the [appellant]. Together with some of her neighbours Murphy was able to restrain the [appellant] on the ground.
32. Seidel asked the [appellant] what was in the backpack he was carrying and attempted to take it from him. The [appellant] became agitated and threw a punch which struck Murphy on the right of her jaw (Charge 9 - Common Assault).
33. One of Murphy's neighbours Geoffrey Carren was assisting in the apprehension of the [appellant]. As Carren was kneeling to assist in restraining the [appellant], he reached forward with his mouth and bit Carren on the upper right thigh. The bite penetrated Carren's skin causing bruising and red marks (Charge 10 - Recklessly cause injury).
34. Police attended at the scene a short time later and the [appellant] was taken into custody.
35. As he was placed into the divisional van he stated, 'I was paid $20,000 to attend the address and delete files on their computer'.
Police investigation:
36. Crime scene detectives attended at the address of 4 Coffey Court, Jan Juc. They seized the laptop computer which the [appellant] was seen to be utilising and a single blue latex glove from the floor of the living room.
37. The [appellant] was transported to the Geelong Police Station.
38. On arrival at the police station, the [appellant] produced a condom to Leading Senior Constable Mellington stating that he had been sexually assaulted at the address and wanted a test kit done.
39. Police seized the condom pending further investigation.
40. Police examined and photographed the contents of the backpack being carried by the [appellant]. Together with other various items, police located and seized the following:
Blue cap (later identified as being worn by the [appellant] when utilising the stolen ANZ bank card at Woolworths on 14 April 2019);
Mask (as worn by the [appellant] during the aggravated burglary at 4 Coffey Court Jan Juc and as seen on CCTV footage being worn by the [appellant] during the aggravated burglary at 165 Grove Road Grovedale); and
Pair of Nike running shoes (as seen on CCTV footage being worn by the [appellant] during the aggravated burglary at 165 Grove Road Grovedale).
41. At 3.08 pm on 15 April 2019 the [appellant] participated in a Record of Interview. In questioning the [appellant]:
42. At 6.25 pm on 15 April 2019 police executed a search warrant at 10 Canowindra Place Grovedale being the home address of the [appellant]. The following items were seized:
Black 'Everlast' jumper (as seen on CCTV footage being worn by the [appellant] during the aggravated burglary at 165 Grove Road Grovedale);
Black tracksuit pants (as seen on CCTV footage being worn by the [appellant] during the aggravated burglary at 165 Grove Road Grovedale);
A box of blue latex gloves; and
A single blue latex glove.
43. The laptop utilised by the [appellant] at 4 Coffey Court Jan Juc was later provided to the Victorian Police e-crime department for forensic analysis. Examination of the laptop revealed that between the hours of 5.00 am and 6.15 am on 15 April 2019 several different websites were accessed through the Internet browser.
44. The file system on the laptop storage device recorded that more than 500 thumbnail images depicting person in a sexual context were created between 6.03.50 am and 6.08.09 am.
Additional offences:
45. It was later identified that the 'Giant' mountain bicycle utilised by the [appellant] at 4 Coffey Court Jan Juc had been stolen from the rear of a property at 5 Linden Grove, Grovedale (Charge 7 - Theft).
46. On 1 February 2019 an order was made in the Geelong Magistrates' Court requiring the [appellant] to comply with the conditions of a Prohibition Order pursuant to Part 4A of the Sex Offenders Registration Act 2004.
47. One of the conditions of the Prohibition Order prevented the [appellant] from leaving his place of residence between the hours of 10.00 pm and 7.00 am each day. In committing the aggravated burglaries on 14 April 2019, the [appellant] breached the Prohibition Order (Charge 5).
48. In committing the aggravated burglary on 15 April 2019, the [appellant] again breached the Prohibition Order (Charge 11).
9 In his reasons for sentence, the judge - who had sentenced the appellant following the two trials in 2011 - first summarised the appellant's offending before going on to summarise the victim impact statements. He described the offences as 'brazen invasions of the sanctity of the homes of the victims', and an 'attack' on the victim's safety and privacy, and observed: 'The trauma and impact on the victims is understandable. This sort of aggravated burglary causes great concern for the whole community as people generally do not feel safe as they should when they come to learn of these types of crimes'. The appellant's crimes were 'chilling', 'very serious examples of aggravated burglary'.
10 The judge described the appellant's moral culpability as 'serious'. He observed that although the appellant was 'not to be repunished here for earlier crimes', it is 'highly relevant that [he was] found guilty in 2011 by two separate juries of serious crimes'. The judge went on:
The fact that you have a clear criminal propensity to invade homes of ordinary members of our community and have been punished by imprisonment makes your moral culpability for these three repeated crimes very high indeed. Obviously, there must be very significant weight attached to deterrence to you and to the protection of the community from you.
You have other prior criminal offences both before your previous crimes for which I imposed the sentence of seven years with a minimum of five years' imprisonment and offences since you were released from prison. Your offending history commenced in your late teenage years with a series of violent offences and offences involving weapons. You breached the community-based orders you were placed on. Thereafter, you were convicted and fined for thefts, mostly shop thefts.
After your sentence and ultimately release for the sexual offences and the aggravated burglary, you have been back before the Magistrates' Court for breaching a condition of your parole but more concerningly on 26 October 2018, you were convicted of entering a private place without authority or excuse and sentenced to the 195 days' imprisonment being the time that you had served on remand together with you being placed on a 12-month targeted community corrections order which later had a justice plan attached to it as one of the conditions.
Thus at the time of these offences, you were about six months out of another gaol term and also aggravating the overall circumstances is that you were on a community corrections [sic] order at the time of these crimes.
11 The judge noted the contents of a report by a psychologist, Gina Cidoni, who assessed the appellant's IQ as 60, and an earlier report by a neuropsychologist, who, in 2010, had assessed the appellant's IQ as being 65, and said that he accepted that the appellant's intellectual disability is properly to be viewed as impaired mental functioning within the meaning of Verdins.[12] Further, the judge noted that in Muldrock,[13] the High Court 'has firmly stated that intellectual disability is relevant in sentencing with respect to moral culpability, deterrence and protection of the community'. The appellant's intellectual disability is, however, 'but one factor impacting on those sentencing considerations'.
12 Bugmy[14] principles, the judge said, apply 'given the extent of and the enduring impact of [the appellant's] abusive background'. He added:
In respect to that, the following needs to be understood. Your upbringing saw you subjected to sexual abuse and violence at the hands of your stepfather. Your mother did what she could to provide you with emotional support. The serious sexual abuse of you and siblings by your stepfather resulted in your stepfather receiving a very long sentence of imprisonment being 11 years with a minimum non-parole period of 8.5 years imposed by another County Court judge sitting in Geelong.
I have examined those sentencing remarks and note that your victim impact statement stated that you suffered from post-traumatic stress disorder. I did not then and I do not now give mere lip service to the mitigatory aspects of your sexual abuse. You suffered very significantly through your childhood and I have no doubt you have been left with psychological scars as a consequence of your sexual abuse and emotional abuse and deprived upbringing.
Its effect upon your capacity to gain an education and social skills is considerable. You attended special schools during the time of your childhood and thereafter have not held jobs for any length of time. There have been times that you have been homeless.
13 The judge rounded off his remarks with the following observations:
All in all, as I said, your intellectual capacity is low and your psychological health is fragile. These matters were made clear again in the report of Ms Cidoni.
As I stated in my earlier reasons and I adopt here, your combined intellectual disability and your deep psychological problems mean that there will be some moderation of the ordinarily very considerable weight that would be given to general deterrence. Likewise, the very high moral culpability I spoke of is to some small extent moderated by reason of your impaired mental functionings [sic].
Deterrence to you looms large now and the amelioration of that aspect of this sentence is to be taken in the context of the now greater need for you to be deterred.
What also needs to be well-understood is that your enduring impaired mental functionings [sic], that is your intellectual disability and your psychological problems, must be seen as requiring consideration and weight to be given to the protection of the community. The ultimate sentence must remain proportionate but within that fundamental proposition. I must balance the ameliorating aspects of your impaired mental functioning with other aspects that give weight to the protection of the community.
The denunciation of your frightening conduct together with appropriate weight being given to deterrence to you and to others and protection of the community are the primary sentencing purposes.
Your rehabilitation is not overlooked, however, my view now is that your prospects for true reform are grim.
Your plea of guilty is very important. It is an acknowledgment of your responsibility for these offences. I have also taken into account your own letter to the victims as another element or expression of remorse.
In these difficult times of the COVID-19 pandemic, a plea of guilty is particularly valuable thus your sentence is much less than it would otherwise have been. Gaol is a harsher environment because of the pandemic and I have added that into the equation. So too your time as a prisoner with your impaired mental functioning.
The principle of totality is important and I must ensure that the totality of these closely connected but separate crimes is met by a total and proportionate sentence; no more and no less. There needs to be recognition of the separate aggravated burglaries and the separate impact on the various victims.
14 Counsel for the appellant submitted that although the judge stated that he had regard to the principle of totality, he failed properly to apply that principle with respect to the sentences for aggravated burglary (charges 1, 3 and 8). There is, counsel contended, 'a disproportionate degree of cumulation'. Further, whilst not constituting a single transaction, the appellant's offences occurred over a period of a few hours and in close proximity to each other. Consistently with the 'single transaction' rule, the facts of this case warranted greater concurrency.
15 The appellant's counsel also submitted that, whilst the judge referred to the principles in Muldrock, he took insufficient account of the appellant's intellectual disability and as such the sentences imposed on charges 1, 3 and 8 are manifestly excessive. Counsel pointed to Ms Cidoni's opinion that the appellant had 'extremely low intellectual function'. Moreover, so counsel submitted, whilst the judge did refer to the appellant's experience of profound deprivation, he failed to give 'full weight' to the appellant's deprived background, consistent with principles in Bugmy.
16 As a result of these matters, counsel argued, the sentence imposed is manifestly excessive.
17 The respondent's counsel submitted that the sentence demonstrates that the judge properly applied the principle of totality.
18 Counsel submitted that the sentence imposed is well within the appropriate range. The aggravated burglaries were serious examples of a serious crime. They involved very significant violations of the victims' privacy, and had serious effects.
19 Furthermore, counsel submitted that the appellant has a highly relevant and concerning criminal history. The present offending breached both a CCO and a prohibition order. Added to those matters, the judge assessed the appellant's prospects of rehabilitation as 'grim'.
20 The respondent's counsel submitted that the sentencing judge explicitly took into account the appellant's intellectual disability and disadvantaged background in moderating general deterrence, and in relation to his assessment of the appellant's moral culpability. Counsel submitted orally that specific deterrence 'has to be moderated but it has to be seen in the context of his prior offending'. The judge was correct, counsel submitted, to observe that the appellant's impaired mental functioning, seen in light of his recidivism, was apt to elevate the importance of community protection.
21 It is convenient to consider both grounds together.
22 As we have mentioned, the judge acknowledged that Bugmy principles applied, given the extent and enduring impact of the appellant's abusive background. But, as we have also mentioned, the appellant's counsel contended that, despite this acknowledgment, the judge did not give Bugmy principles 'full weight'.
23 That the appellant's early years were blighted by abuse may readily be accepted. Notwithstanding his deprived background, however, the appellant's poor criminal record remains highly relevant. As the judge recognised, the appellant is not to be punished again for his prior offending. But his criminal antecedents are relevant as indicators of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community's need for protection); and the increased importance of specific deterrence as a factor in sentencing.[15]
24 Indeed, the High Court made clear in Veen [No 2][16] that, although the appellant's antecedent criminal history 'cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence', it is relevant
to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
25 Veen [No 2] involved a sentence imposed in a case in which the appellant, in 1983, had stabbed a man repeatedly with a bread knife. He pleaded guilty to manslaughter on the basis of diminished responsibility and was sentenced to life imprisonment. The appellant had an earlier conviction for manslaughter, having killed a man in 1975 by repeatedly stabbing him.[17] His history was peppered with other incidents of violence. In his appeal to the High Court in relation to the sentence for the 1983 offending, the Court took into account not only the bare fact of his previous convictions, but also the factual circumstances underpinning his previous acts of very serious violence. The appellant's life was a 'sorry story'. He was Aboriginal, and as a small child had been given to non-Aboriginal foster parents. His childhood was 'disturbed'. A male teacher sexually molested him. He had poor academic performance, and had brain damage from alcohol abuse. Despite his deprived background, however, the High Court did not disturb the sentence. The majority observed that the 'tragedy of Veen's life, which ... must excite sympathy for him, has to be balanced against the exigencies of the criminal law especially the protection of society'.[18]
26 More recently, in Bugmy itself - in a continuation of the passage relied upon by the appellant's counsel - the High Court observed that an inability to control violent responses to frustration, born of an exposure to violence and substance abuse, may increase the importance of community protection as a feature in sentencing:[19]
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[20] An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
27 In light of Veen [No 2], it is legitimate to take into account the factual circumstances of the appellant's previous offending.
28 By far the most serious of the appellant's prior convictions relate to convictions returned by juries at two trials in the November 2011 sittings of the County Court at Geelong, which concerned offences committed on 22 November 2007 and 14 April 2010 respectively. On the 2007 offending, the appellant was convicted of one charge of aggravated burglary (charge 1) and one charge of indecently assaulting 'MC', an 18 year old woman (charge 2). The 2010 offending also involved a young adult female victim, 'CT'. With respect to that offending, the appellant was convicted of indecently assaulting (charges 4, 6 and 7), and threatening to kill, CT (charge 5). For both sets of offending, the trial judge sentenced the appellant to a total effective sentence of seven years and three months' imprisonment, with a non-parole period of five years. On appeal to this Court, the offending was described as follows:[21]
The first episode of offending occurred when the appellant entered a house in a Geelong suburb in the early hours of the morning with the intention of committing a sexual assault. He entered the bedroom of the victim, got onto her bed, took down his tracksuit pants and exposed his penis to her. He put his hands under the bed clothes and touched the victim on her pubic area or genitalia. That woke her up. She pushed his hand away and saw that he was lying on her bed masturbating. He then left the house and, although he left a fingerprint, he was not matched to that fingerprint until some years later. The offending led to one charge of aggravated burglary and one charge of indecent assault, of both of which he was convicted.
The second episode of offending was similar. It occurred in another Geelong suburb in a house shared by three young women. The appellant entered the house in the early hours of the morning through an unlocked door and then entered the victim's bedroom. She woke and got up from her bed. She was grabbed by the appellant who threw her onto the bed and got on top of her. He engaged in what she described as 'dry humping' and, when she tried to see his face using the light from her mobile phone, he threatened to kill her. At some point, he put his hand down on the victim's pubic area underneath her underpants. He then grabbed her hand and put it on his erect exposed penis. She pushed him off and he ran from the house. This offending gave rise to a charge of aggravated burglary, of which the appellant was acquitted, three charges of indecent assault, of which he was convicted, and one charge of making a threat to kill, of which he was also convicted.
29 Turning to the appellant's intellectual disability, in 2010 the appellant's IQ was, as we have mentioned, assessed as being 65. More recently, Ms Cidoni's testing on 11 March 2020 indicated that the appellant has 'an extremely low intellectual function, in the impaired range', with an IQ of 60. In her report, Ms Cidoni expressed the following opinions:[22]
48 [The appellant] presented as an intellectually reduced man where test results indicated extremely low intellectual function, in the impaired range at 60.
...
50 At this level, he is challenged with comprehension, making sound judgments, problem solving and thinking clearly. He lacks adequate literacy skills, problems grasping concepts, difficulty with logical thinking, difficulty with processing and connecting actions with consequences.
51 Documents received indicated he was receiving NDIS [National Disability Insurance Scheme] support for his intellectual disability is acknowledged.
52 He suffers low mood and anxiety possibly arising from the negative experiences he described. There was a level of grandiosity but he did not express any psychotic ideas. There are problems with impulse control and immaturity linked to his low intellect.
53 He dabbles in drugs and alcohol and this use that makes him disinhibited and further impairs his thought processes and judgment.
54 It was understood he is pleading guilty to the charges and he has a history of this type of behaviour (in 2011) where he received a prison term of seven years. He was paroled and re-paroled and there was a CCO in 2018.
55 Upon his release, it is imperative that [the appellant] receive regular therapeutic support pitched at his low intellectual level. He requires regular monitoring, assistance to correct negative behaviours and confirm positive behaviours and assistance with his compliance issues. There are resources through his NDIS funding to facilitate this. As identified, he requires meaningful occupation and help with socialisation.
56 With regard to his moral culpability at the time of the offences ... his intellectual impairment is severe and has reduced his moral culpability in that it would have the effect of impairing his ability to exercise appropriate judgement and to make calm and rational choices (to think clearly), and makes him disinhibited.
...
58 As a result of intellectual disability, prison would weigh more heavily upon him.
30 The circumstances of the appellant in Muldrock - cited by the judge - bear a deal of similarity to those of the present appellant. In that case, the appellant had been sentenced for a sexual offence against a minor. Expert evidence was that the appellant had an IQ Composite Standard Score of 62, which was indicative of a mild intellectual disability,[23] as a result of which the appellant functioned at a level lower than 99 per cent of the population. Further, the evidence was that the appellant had been sexually abused at the age of ten. Psychological evidence suggested that the appellant's retarded development was the cause of his difficulty in managing his impulses and controlling his actions. The High Court observed:[24]
One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:[25]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
In the same case, Lush J explained the reason for the principle in this way:[26]
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
The principle is well recognised.[27] It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence.[28] 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.
31 As Muldrock makes clear, an intellectually disabled offender's moral culpability will in most cases be lessened - although not necessarily eliminated - due to a reduced capacity to reason as to the wrongfulness of his or her conduct. The aspects of denunciation[29] and just punishment[30] in a sentence appropriate for a person of ordinary capacity will often - but, presumably, not always - be inappropriate for an intellectually disabled offender (and the needs of the community).[31] So much is consistent with what had earlier been said in Verdins.[32]
32 Moreover, in the case of an intellectually disabled offender, general and specific deterrence may - depending upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender - be moderated or eliminated as sentencing considerations.[33] As Young CJ observed in Mooney, in the passage above cited in Muldrock, in the case of a person with an intellectual disability, general deterrence 'should often be given very little weight ... because such an offender is not an appropriate medium for making an example to others'.
34 In the present case, it could not sensibly be contended that the three aggravated burglaries committed by the appellant were not serious. Clearly, they were accompanied by some planning and premeditation, in that the appellant wore surgical gloves and a mask to hide his identity. That aspect is significant, given that the appellant had made the mistake of leaving a fingerprint behind at the scene of his 2007 attack on MC, which was only matched to him some years later, leading to his arrest and ultimate conviction. Quite plainly, he wore surgical gloves in the course of the present offending so as to avoid detection, apparently having learned from his earlier mistake.
35 Serious features of the appellant's offending include the fact that he entered private residences in the early hours of the morning knowing that a person was present, or being reckless as to whether or not a person was present, at a time when anybody present in the house was likely to be asleep. At least for the purposes of charges 1 and 8, the appellant was in the relevant home for an extended period - without any apparent sense of urgency - so much exacerbating the invasion of the occupants' privacy, and increasing the risk of confrontation with one or other of the residents.[36] Indeed, during the offending the subject of charge 8, the appellant - sitting on the couch viewing pornography on Mr Bowen's computer - was encountered by Ms Murphy returning home from the gym, provoking a confrontation which ultimately resulted in Ms Murphy being punched in the face and a concerned neighbour being injured when bitten. Moreover, the appellant's offending is aggravated by the fact that it occurred in breach of a prohibition order and whilst he was subject to a CCO.[37]
36 Notwithstanding that his offending showed (at least) rudimentary forethought, however, we think it is easy to overstate the extent of the appellant's capacity to involve himself in planning of any intricacy. As Ms Cidoni observed - without apparent challenge - the appellant has difficulties in making sound judgments and thinking clearly and logically, and in 'connecting actions with consequences'. Ms Cidoni also expressed the views - again without apparent challenge - that the appellant's 'intellectual impairment is severe and has reduced his moral culpability in that it would have the effect of impairing his ability to exercise appropriate judgement and to make calm and rational choices (to think clearly), and makes him disinhibited'.
37 Ultimately, giving 'full weight' to the appellant's deprived background and to his intellectual disability, and taking into account his early plea of guilty (accompanied by its utilitarian benefits and the appellant's expressions of remorse), we are persuaded that error has been shown. Accepting, as we do, that on account of his intellectual disability the appellant's moral culpability is reduced; that general deterrence must be sensibly moderated; and that curial denunciation has a lesser role to play in sentencing him, we have concluded that the total effective sentence, produced by the orders for cumulation between the individual sentences on charges 1, 3 and 8, is manifestly excessive, as is the non-parole period.
38 We recognise that, despite the appellant's intellectual disability, specific deterrence - suitably moderated - still had some role to play in the sentence to be imposed upon the appellant. Hence, at the time of committing the three aggravated burglaries on 14 and 15 April 2019, he understood the need to disguise himself by wearing a mask over his face and to wear gloves to avoid fingerprint detection. Thus, the appellant is capable at some level of understanding that committing further offences of the same kind will inevitably lead to severe punishment. As we have said, however, the evidence suggests that his ability to exercise appropriate judgement and to make calm and rational choices is somewhat impaired. Hence, although specific deterrence was not eliminated as a sentencing consideration, its importance was diminished.
39 In our view, the sentencing judge's assessment of the appellant's prospects of rehabilitation must be accepted. Given his history, they are indeed grim. There can be no doubt that the appellant is a recidivist. His intellectual disability, for which he bears no responsibility - but which has marked effects on his behaviour - will not dissipate. As best these things can be predicted, it is unlikely that he will reform, so that his propensity unlawfully to enter premises with criminal intent will abate. To that extent, the need for community protection emerges as an important factor in sentencing.
40 As is clear from Veen [No 1] and Veen [No 2], however, community protection through incapacitation of an offender can only operate within the confines of the principle of proportionality. Thus, in Veen [No 1], the sentencing judge fixed the maximum sentence for manslaughter, life imprisonment - notwithstanding elements of provocation and diminished responsibility - based on the need to protect the community from Veen's predicted future dangerousness. Holding that approach to be wrong in principle, the High Court substituted a sentence of 12 years' imprisonment. After Veen killed again, he was once more sentenced to life imprisonment for manslaughter. He once more appealed to the High Court. On that occasion, however, in Veen [No 2], the High Court held that the facts justified a life sentence as being proportionate. Significantly, however, the Court reaffirmed that, although protection of the community is relevant to the fixing of sentence, a sentencing court cannot impose a sentence disproportionate to the seriousness of the crime in order to extend the period of community protection from the risk of the offender's recidivism. Mason CJ, Brennan, Dawson and Toohey JJ said:[38]
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.
41 In our opinion, the individual sentences on charges 1, 3 and 8 are all within the available range. Being fully aware of the fallacy of naïve fractions, the sentence imposed on charge 8 is a shade above 25 per cent of the maximum available penalty, while the sentences on charges 1 and 3 are a shade below. In light of the appellant's poor criminal history (including the circumstances of some of his earlier offending) and the serious nature of the current offences, the sentences on those charges appear to give proper recognition to the appellant's early plea of guilty, his deprived background and his intellectual disability.
42 We consider, however, that the same cannot be said of the total effective sentence produced by the orders for cumulation. In our view, the extent of the cumulation ordered of the sentences on charges 1 and 3 upon the sentence on charge 8, fails to give proper recognition to the fact that the three offences, although serious, were part of a limited spree confined to two days, and to give full weight, in particular, to the appellant's deprived background and intellectual disability. Sythesising all relevant factors, we are of the view that the total effective sentence and non-parole period are wholly outside the range of those open in the sound exercise of discretion.[40]
43 For the foregoing reasons, we would allow the appeal and resentence the appellant. As we have indicated, we consider the individual sentences on charges 1, 3 and 8 are proportionate (as, indeed, are the other individual sentences fixed by the judge). As we have also indicated, the degree of cumulation ordered has produced a total effective sentence (and, correspondingly, a non-parole period) which is manifestly excessive. Thus, although we would resentence the appellant in such a way as to impose individual sentences no different to those imposed by the sentencing judge, we would make different orders for cumulation, so as to ensure the imposition of a proportionate total effective sentence.
44 Our overall intention is reflected in the following table:
[1] His date of birth is 1 September 1985.
[2] We note that in her report, tendered on the plea (Exhibit 1), Ms Gina Cidoni, clinical psychologist, referred to prior findings of guilt in the Children's Court dating back to 2001:
[The appellant's] priors date back to January 2001 in the Children's Court at age 15, where he appeared in relation to intentionally damage property and was placed on a Good Behaviour Bond (GBB) without conviction. He was placed on probation without conviction in May 2003 for aggravated burglary (person present) and theft. He first appeared in the Magistrates' Court in April 2005 where he was placed on a Community Based Order (CBO) for recklessly cause injury. ...
[3] Stevens v The Queen (Unreported, Court of Appeal, Priest JA, 14 December 2020).
[4] Crimes Act 1958, s 77. The maximum penalty is 25 years' imprisonment.
[5] Crimes Act 1958, s 74(1). The maximum penalty is 10 years' imprisonment.
[6] Sex Offenders Registration Act 2004, s 66ZP. The maximum penalty is five years' imprisonment.
[7] Crimes Act 1985, s 81(1). The maximum penalty is 10 years' imprisonment.
[8] The maximum penalty is five years' imprisonment.
[9] Crimes Act 1985, s 18. The maximum penalty is five years' imprisonment.
[11] Footnotes omitted; emphasis added.
[12] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').
[13] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 ('Muldrock').
[14] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 ('Bugmy').
[15] R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA) ('O'Brien and Gloster').
[16] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ) ('Veen [No 2]') (emphasis added). See also O'Brien and Gloster, 718 (Charles JA); Bugmy, 595 [45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[17] See Veen v The Queen [No 1] [1979] HCA 7; (1979) 143 CLR 458 ('Veen [No ])').
[18] Veen [No 2], 478 (Mason CJ, Brennan, Dawson and Toohey JJ).
[19] Bugmy, 595 [44] (citations as in original).
[20] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.
[21] Stevens v The Queen [2012] VSCA 192, [3]-[4] (Bongiorno JA, Buchanan and Weinberg JJA agreeing).
[23] As to the ramifications of having a 'mild intellectual disability', see Muldrock, 137-8 [50].
[24] Muldrock, 138-9 [53]-[54] (emphasis added; citations as in original).
[25] R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160.
[26] R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160-161.
[27] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VicRp 17; [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48.
[28] See R v Engert (1995) 84 A Crim R 67 at 71.
[32] Verdins, 276 [32] (proposition 1). See also Ryder v The Queen (2016) 256 A Crim R 115, 127-9 [28]-[32] (Whelan JA and Cavanough AJA); R v McIntosh [2008] VSCA 242; (2008) 191 A Crim R 370; DPP v Lovett [2008] VSCA 262; DPP v Patterson [2009] VSCA 222; Leeder v The Queen [2010] VSCA 98; Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486; DPP v Cramp [2019] VSCA 174.
[33] Verdins, 276 [32] (propositions 3 and 4). Compare R v Bux [2002] VSCA 126; (2002) 132 A Crim R 395, 402-3 [33] (Eames JA).
[35] Verdins, 276 [32] (proposition 5).
[36] Compare Dirbass v The Queen [2018] VSCA 272, [65].
[37] Bieljok v The Queen [2018] VSCA 99, [68]; DPP v Basic [2017] VSCA 376, [70]; DPP v Milson [2019] VSCA 55, [66].
[40] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15] (Gleeson CJ, Gaudron, McHugh. Gummow, Kirby, Hayne and Callinan JJ).
Stevens
The Queen [2021] VSCA 218
(2007) 16 VR 269
(2011) 244 CLR 120
(1999) 195 CLR 665
(1988) 164 CLR 465
(1979) 143 CLR 458
(2013) 249 CLR 571
(2011) 32 VR 486