Wright v The Queen [2021] VSCA 243

1 Following a plea of guilty, on 12 June 2020 a judge of the County Court sentenced the appellant for the crime of rape[1] to eight years' imprisonment, with a non-parole period of six years.[2]

2 On 30 November 2020, I granted the appellant leave to appeal against his sentence on two grounds:[3]

1. The head sentence and non-parole period imposed are manifestly excessive in the light of

1. The circumstances of the offence being below the mid-range of seriousness in the submission of the prosecution

2. The applicant's immediate surrender to police, confession, and early plea of guilty

3. The applicant's serious mental impairment leading to a finding by the learned sentencing Judge that general and specific deterrence should be moderated

4. The additional burden of imprisonment for the applicant arising from his mental impairment

5. The applicant's relative youth

6. Current sentencing practices.

2. The learned sentencing judge erred in giving too much weight to protection of the community and in seeking to achieve protection of the community by imposing a longer sentence of imprisonment.[4]

3 Having now had the benefit of further argument, I consider that the appeal should be dismissed.

4 The appellant was aged 25 years when he committed the present offence.[5]

5 In his reasons for sentence, the judge summarised the circumstances of the appellant's offending as follows:[6]

... In summary, on 5 March 2019 at about 11.00am, your victim was shopping at the Bridge Mall, Ballarat Central. You were also present in the Bridge Mall and by chance simultaneously walked along the same pedestrian crossing as your victim but in the opposite direction to her. Your victim stopped at or near the crossing in order to light a cigarette and crouched down to do so. As your victim crouched down, you stopped and 'had a bit of a perve' at her. After your victim stood up and continued to walk along the crossing, you did likewise but in the opposite direction to her.

As you walked away from your victim, you thought that she 'was pretty' and you decided to turn and follow her and grab her 'arse or something'. You caught up to your victim at a point where she had stopped at Grenville Street North and checked to see that it was clear to cross. While your victim stopped to check the traffic, you grabbed her from behind. You reached over your victim's left shoulder and across her chest with your hand over the area of her right collar bone and held her. Your victim thought it was someone playing a practical joke on her. While you held your victim, you reached up your victim's dress from behind with your right hand, you reached between her legs, pushed her underwear to the left and inserted your finger into her vagina. While doing so, you jerked your hand back and forth and 'lifted her up a bit'. Your victim yelled, 'Get off me, you fucking cunt' and shortly thereafter you let go of the victim and fled towards Field Street. As you left the scene of your offending, your victim recognised you as the man who had looked her up and down earlier on the crossing.

Your victim was approached by three males who comforted her and who had each witnessed the incident.

While your victim was being comforted, you ran west along Field Street through the car park at the rear of Rebel Sport, down a laneway past Carpet Court and back onto Grenville Street. Upon re-entering Grenville Street, you were spotted by the victim and the male witnesses and you then walked along Grenville Street past the court complex and decided to hand yourself in to the Police.

As you walked along Grenville Street, you were followed by your victim who had called triple zero and described her plight to the operator.

At the time of your offending, you were on bail and this is an aggravating feature of your offending. ...

When you entered the Ballarat Police Station, you spoke to the police officer at reception and advised her that you wished 'to hand myself in ... I've done a bad thing'. You were then dealt with by Detective Senior Constable Morton who cautioned you and briefly interviewed you. During your conversation with Detective Senior Constable Morton, you told her that 'I touched a lady at Rebel Sport' and when asked, 'Where did you touch her?' you responded, 'I grabbed her between the legs.' You were subsequently formally interviewed under caution and while you gave an accurate and detailed account of the incident, you denied penetrating your victim's vagina although you readily agreed that you had rubbed your victim on her vagina with your right hand. When asked why you touched your victim, you responded, 'Coz I was horny I suppose'.

6 As a result of highly relevant prior convictions, the appellant was sentenced as a serious sexual offender.[7] Among his prior convictions, the appellant has four for sexual assault. Quite disturbingly, the conduct underlying these convictions bears remarkable similarity to the instant offending, albeit that his previous victims were not sexually penetrated.

7 Thus, at about 8.00 am on 6 February 2016, the appellant was near the entrance to Southern Cross Station on the overpass, when he approached a 21 year old female, reached between her legs and grabbed her firmly on the genitals with such force that she was lifted off the ground. When his victim and her companion screamed, the appellant turned and walked away without responding. On 2 June 2017, the appellant was sentenced to six months' imprisonment for this sexual assault, having breached a community correction order initially imposed for it in May 2016.

8 Later that year, on 9 November 2016 at a little after 9.00 am, the appellant was in a multi-storey carpark in Ballarat. A female had parked her car and obtained a ticket from a ticket machine. She was placing the ticket on her dashboard when the appellant grabbed her roughly on the genitals on the outside of her clothing from behind, and moved his hand around. She told him to 'fuck off', and he ran away.

9 At 3.40 pm that same day, the appellant approached another female in Sturt Street, Ballarat. He grabbed her from behind on the left buttock and squeezed, before running away. About ten minutes later, the appellant entered Central Square Shopping Centre and approached yet another female. He grabbed her buttocks over clothing from behind and placed a finger between her legs before running away. On 2 June 2017, the appellant was sentenced in the County Court to 12 months' imprisonment on each of three charges of sexual assault. With orders for cumulation, the total effective sentence was two years' imprisonment, upon which the judge fixed a non-parole period of 14 months.

10 The appellant, now aged 28 years, has an autism spectrum disorder ('ASD') and suffers from schizophrenia. Testing in 2016 revealed that he had a full scale IQ of 75.

11 In relation to the appellant's earlier charges of sexual assault, Associate Professor Warrick Brewer, a neuropsychologist, had prepared a report, dated 11 February 2017. His opinions were not a source of optimism so far as the appellant's prospects of rehabilitation are concerned. He said:[8]

The cluster of mental status and cognitive difficulties ... leave Mr Wright disinhibited, and further, they limit his ability to mindfully consider the longer-term impact of his behaviour on others, and for himself, or to allow his memory of previous offending and sanctions to successfully inhibit him following through on his impulses. More certainly, Mr Wright is compromised in his ability to make calm reasoned decisions and appropriate judgements, and in his ability to control his emotions and actions.

...

With respect to prospects of rehabilitation, without adequate long-term and sustained intervention with the one consistent therapist, then Mr Wright's rehabilitation prospects nevertheless remain poor. His past history of treatment for oppositional behaviour, for substance abuse, or for attentional and academic problems as a guide suggests a poor prognosis. However, the evidence suggests that those treatments were based upon a diagnostic formulation that overlooked his long-standing features of ASD. In this clinician's opinion, Mr Wright should be afforded the opportunity at least for evidence based treatment here. Nevertheless, his current cognitive and psychotic vulnerabilities will compromise treatment with respect to difficulty. It is recommended that verbal interaction within therapy be supplemented by visuospatial material to harness his strengths.

With respect to risk of re-offending, notwithstanding the opinions provided in varying contexts above, it is this clinician's opinion that Mr Wright will remain at high risk for re-offending, particularly if not adequately treated. However, deferral to the opinion of more qualified forensic opinion is more appropriate here.

12 Associate Professor Brewer expressed the view that the appellant's overall intellectual ability fell within the borderline range. Further, he was of the opinion that the results of the appellant's testing reflected a significant reduction from premorbid intelligence. Psychosis resulting from the appellant's abuse of methylamphetamine was responsible for his decline in intellect. At the time of his consultation with Associate Professor Brewer, the appellant was suffering from a significant mental illness - schizophreniform disorder - associated with cognitive and functional decline against a longstanding background of atypical ASD.

13 For the purposes of the plea in mitigation for the current offending, Dr Adam Deacon, a consultant psychiatrist, provided a report dated 31 January 2020 (Exhibit 4) and a supplementary report dated 8 March 2020 (Exhibit 5). In his first report, Dr Deacon stated that the appellant 'has an established diagnosis of schizophrenia and [ASD]'; and that, although his 'underlying ASD is possibly relevant to aspects of his offending behaviour ... it does not limit his capacity to understand the wrongfulness of his conduct'. Dr Deacon thought that the appellant 'clearly requires engagement in a sex offender program tailored to his somewhat unique needs and underlying complex mental health problems'.

14 In his supplementary report, Dr Deacon expressed the view that it was 'feasible' that there was a connection between the appellant's ASD and the offending - although not his schizophrenia or major depression - based on his 'apparent reduced understanding, reasoning and judgement' associated with his ASD. Dr Deacon stopped short, however, of saying that there was such a connection.

15 The appellant's parents separated when he was about two years of age. After his parents' separation, the appellant lived with his mother. From an early time, the appellant was a problematic school student due to his disruptive behaviour. In 2000, when aged about seven years, he was diagnosed at the Royal Children's Hospital with oppositional defiant disorder. The appellant repeated Grade 1, and required remedial one-on-one support during Years 7 and 8. In his final year at school, Year 8, the appellant was suspended and then expelled.

16 After leaving school, the appellant attempted the Victorian Certificate of Applied Learning but did not complete it. It appears that he also attempted Year 10 at Ballarat Secondary College, but experienced academic difficulties. He also exhibited continuing delinquent behaviour, together with signs of anxiety, depression and low self-esteem. The appellant worked as a bricklayer for approximately 18 months, but was sacked because of difficulties with co-workers.

17 The appellant left home at the age of 14 or 15 years to live with friends. He began using methylamphetamine at the age of 18 years, and has experienced withdrawal psychosis which caused him to be treated as an outpatient with Ballarat Psychiatric Services. His longest relationship lasted approximately six months when he was about 18 years of age.

18 In addition, as I have indicated, the appellant has been diagnosed with ASD. According to the records of the Peninsular Mental Health, the appellant experienced further episodes of drug-induced psychosis in 2014.

19 In his reasons for sentence, the judge described the appellant's offending and the 'strikingly similar' conduct related to his prior convictions. He noted the applicable maximum penalty, and turned his attention to the standard sentencing scheme, citing various passages from Brown.[9]

20 The judge then discussed the effect of the rape on the appellant's victim. He referred to the victim impact statement and said:

At the time that you offended against your victim, she was aged 19 years and unemployed and living in her car. She was a vulnerable young person. Since the time of your offending, she has experienced nightmares on an almost daily basis in respect to your offending against her. She wakes shaking, sweating and terrified in the dark from these nightmares. ...

Your criminal conduct has profoundly and adversely affected your victim and these adverse effects will be with her for some years to come.

21 Next, the judge discussed the opinions of Associate Professor Brewer and Dr Deacon. He said that, although, based on Dr Deacon's reports, 'there is insufficient evidentiary material' to find a causal connection between the appellant's serious psychiatric illness and his offending, 'this finding does not preclude [the judge] from taking into account [the appellant's] serious psychiatric illness and the effects that it has upon [him]'.

You are a youthful offender. You surrendered yourself to police immediately after the commission of the instant offence. You gave police an accurate account of your offending, save that you would not admit that you had sexually penetrated your victim. You entered your plea at the earliest possible opportunity. You are entitled to a substantial benefit for surrendering yourself to the police and you are entitled to the benefits that flow to you from your early plea of guilty, namely that it is has utilitarian benefit and is some evidence of your remorse. However, your previous offending, when combined with your psychiatric illness, in my opinion, makes it likely that you will offend again in the future in a similar way to the instant offence and calls for the full effect of the serious sex offender provisions of the Sentencing Act 1991 to be applied to you in order to protect the community. The proper application of this sentencing principle will not result in a disproportionate sentence.

Your offending is a serious example of offending of its kind. Although there was limited premeditation prior to your offending, you had walked away from your victim and then decided to offend against her. You pursued her in broad daylight in a public place and raped her.

You suffer from a serious psychiatric illness. In your case general deterrence must be sensibly moderated. It appears that you have limited impulse control and limited insight into your psychiatric illness despite it being appropriately treated with antipsychotic medication. Accordingly, specific deterrence must also be moderated in your case. However, the community must be protected from you. In addition, your conduct must be publicly denounced and justly punished.

23 It is convenient to consider both grounds together, since ground 2 is in reality a 'particular' of the complaint of manifest excess embodied in the first ground.

24 Beyond doubt, protection of the community had to figure prominently in any sentence imposed on the appellant for rape. That would have been so even absent the legislative command in s 6D(a) of the Sentencing Act 1991 that the sentencing judge had to 'regard the protection of the community from the offender as the principal purpose for which the sentence is imposed'.

25 As I observed when granting leave to appeal:[10]

The present offending represents a more serious example of the kind of offences previously committed by the [appellant]. Although the general modus operandi is similar - involving disinhibited manual contact with the genital region of a female victim - unlike previous instances, the present offending involved actual digital penetration of the vagina. Quite clearly, the seriousness of the [appellant's] offending has escalated, in circumstances in which it may be predicted with some confidence that the applicant will continue to present a high risk of re-offending in a similar way in future.

26 Of course, the appellant is not to be punished again for his prior offending. His prior offending is, however, highly relevant in a number of ways: as an indicator of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, correspondingly, the community's need for protection); and the increased importance of specific deterrence as a factor in sentencing.[11]

27 As the High Court made clear in Veen [No 2],[12] although the appellant's 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.

28 In his report dated 11 February 2017, Associate Professor Brewer expressed the view that the appellant 'will remain at high risk for re-offending, particularly if not adequately treated'. More recently, Dr Deacon was of the opinion that the appellant 'clearly requires engagement in a sex offender program tailored to his somewhat unique needs and underlying complex mental health problems'.

29 Significantly, although Dr Deacon stated it to be 'feasible' that there was a connection between the appellant's ASD and the offending - based on his 'apparent reduced understanding, reasoning and judgement' associated with his ASD - Dr Deacon ultimately did not conclude that there was such a connection. Also of significance, Dr Deacon's opinion was that although the appellant's 'underlying ASD is possibly relevant to aspects of his offending behaviour ... it does not limit his capacity to understand the wrongfulness of his conduct'.

30 It is clear that in imposing sentence the judge had regard to Verdins[13] considerations. Thus, he observed that 'general deterrence must be sensibly moderated'; and, given the appellant's 'limited impulse control and limited insight into [his] psychiatric illness', 'specific deterrence must also be moderated'. So much reflects Verdins propositions 3 and 4.[14] In the end, however, the judge gave prominence to community protection, denunciation and just punishment. I cannot conclude that he was wrong to do so.[15]

31 It must be remembered that the appellant's complaint is that the sentence imposed is manifestly excessive, such alleged excess having resulted from the judge giving too much weight to community protection, and too little weight to other identified factors. The proper approach to a complaint of manifest excess is as discussed in Leimonitis:[16]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[17] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[18] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[19] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[20]

32 In light of Dr Deacon's opinion that the appellant's ASD does not limit his capacity to understand the wrongfulness of his conduct, had I been the sentencing judge I might have afforded specific deterrence greater significance in the

sentencing process. But that is not to the point. When the ground is one of manifest excess, appellate intervention is only warranted if the sentence under consideration is wholly outside the range of those open in the sound exercise of discretion.

33 Synthesising for myself all relevant factors - the circumstances of the offence and those of the appellant, and the features going in aggravation and mitigation - the appellant in the end has failed to persuade me that the sentence imposed is wholly outside the appropriate range. Indeed, it appears to me that the sentence strikes an appropriate balance between the need for community protection - flowing from the appellant's demonstrated risk of recidivism - and the mitigating effects of his mental impairment. As I have mentioned, although the appellant's mental impairment may have an effect on the control of his impulses, it does not limit his capacity to understand the wrongfulness of his conduct. He thus remains amenable - although, perhaps, to a reduced extent - to specific deterrence through just punishment.

35 I agree with the reasons of Priest JA and with the orders his Honour proposes.

[1] Crimes Act 1958, s 38(1). The maximum penalty is 25 years' imprisonment; and, by virtue of s 38(3) the standard sentence is 10 years' imprisonment. Pursuant to s 11A(4) of the Sentencing Act 1991, the judge was required to fix a non-parole period of at least 60 per cent of the head term, unless satisfied it was not in the interests of justice to do so.

[2] The appellant was also sentenced to one month's imprisonment - to be served concurrently - for the related summary offence of committing an indictable offence whilst on bail. See Bail Act 1977, s 30B.

[3] Wright v The Queen (Unreported, Court of Appeal, Priest JA, 30 November 2020) ('Leave Reasons').

[4] Leave to appeal was refused on a third ground, as follows:

3. The learned sentencing judge erred in failing to recognise that the causal connection between the applicant's autism spectrum disorder and his offending reduced his moral culpability and the degree of punishment appropriate in those circumstances and rendered the applicant an unsuitable vehicle for denunciation.

[6] DPP v Wright [2020] VCC 837, [2]-[8] ('Reasons').

[7] See Sentencing Act 1991, s 6F.

[9] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464-5 [4], 465 [7] and 470-1 [25].

[11] R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA) ('O'Brien and Gloster'). See also Leishman v The Queen (2019) 90 MVR 421, 427-8 [19] (Ferguson CJ, Whelan and Priest JJA) ('Leishman').

[12] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ). See also O'Brien and Gloster, 718 (Charles JA); Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, 595 [45]; Leishman, 427-8 [19] (Ferguson CJ, Whelan and Priest JJA).

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

[15] I note that the appellant's counsel also submitted that, since he made no mention of the additional burden of imprisonment flowing from the appellant's mental impairment, the judge must have failed to give proper weight to proposition 5 of Verdins.

[16] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (citations as in original).

[17] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].

[18] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[20] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15].