R v JAD[2021] QCA 184

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I have had the advantage of reading the reasons of Brown J, in which the facts, the arguments and the judge’s sentencing remarks are set out.  I agree that the application for leave to appeal against sentence should be refused.  However there is one respect in which I differ from her Honour, which I should explain.
2. [2]
   In R v Tsiaras,^[1] the Victorian Court of Appeal (Charles and Callaway JJA and Vincent AJA) explained the ways in which a mental or psychological condition falling short of insanity may be relevant to sentencing.  The Court identified five such ways, to which a sixth was later added in R v Verdins.^[2]  The first of them was that the offender’s mental condition may reduce the moral culpability of the offending conduct; where that is so, the mental condition affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.
3. [3]
   In Verdins, the Court said this about the relevance of an offender’s impaired mental functioning to their moral culpability:^[3]

“Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:

1. (a)
   impairing the offender’s ability to exercise appropriate judgment;

2. (b)
   impairing the offender’s ability to make calm and rational choices, or to think clearly;

3. (c)
   making the offender disinhibited;

4. (d)
   impairing the offender’s ability to appreciate the wrongfulness of the conduct;

5. (e)
   obscuring the intent to commit the office; or

6. (f)
   contributing (causally) to the commission of the offence.

As we have said, this is not to be taken as an exhaustive list.”

(citations omitted)

4. [4]
   The critical piece of evidence from the psychologist, Dr Palk, was that, due to the applicant’s autism spectrum disorder, and his emotional and sexual immaturity, it was “unlikely he would have been able to be aware of or fully understand the consequences of his actions or the harm he was causing the complainants.”^[4]
5. [5]
   The judge was correct in finding that the applicant did understand that his actions could have consequences for him, which is why he told the children not to report what he had done.  But that was not to say that he was able to be aware of, or fully understood the harm which he was causing them.  Dr Palk’s opinion, if accepted, made the applicant’s ASD directly relevant to the applicant’s moral culpability, because it impaired the applicant’s ability to appreciate the wrongfulness of his conduct.  It impaired his ability to understand that he ought not to do what he was doing in the interests of the children who would be harmed by his actions.  I am unable to accept that a person without this applicant’s mental impairment, who fully understood the harm they were causing the complainants,^[5] would be no more morally culpable than the applicant in the same circumstances.
6. [6]
   Ultimately, however, the sentencing judge does appear to have taken this part of the evidence into account.  He judged this consideration to be not “a significant matter” that reduced the applicant’s moral culpability to a degree that warranted a substantially different sentence.  The evidence was considered, and given some weight.  It is not demonstrated that the exercise of the sentencing discretion required that more weight be given to it.
7. [7]
   MULLINS JA:  I agree with Brown J.
8. [8]
   BROWN J:  On 4 December 2020 the applicant was convicted, on his own pleas of guilty, of four counts of indecent treatment of a child (Counts 1, 2, 4 and 5), one count of rape (Count 3), and one count of maintaining a sexual relationship with a child (Count 6) (Indictment 1 Offences).^[6]  On 4 December 2020 the applicant was also convicted on his own plea of guilty of one count of rape on an unknown date between 31 December 2004 and 1 January 2006 (Indictment 2 Offence).^[7]
9. [9]
   The sentences on the Indictment 1 Offences were ordered to be served concurrently.  The longest period of imprisonment imposed was in respect of Count 6, which was for a period of two years.  The sentences imposed in respect of the Indictment 1 Offences were however ordered to be served cumulatively on the sentence imposed in respect of Indictment 2 Offence.  A sentence of two years of imprisonment was imposed in respect of the Indictment 2 Offence.
10. [10]
    The cumulative effect of the sentences on the two indictments resulted in the applicant therefore being subject to a head sentence of four years overall.  The learned sentencing judge set a parole eligibility date after sixteen months, namely 3 April 2022.
11. [11]
    Leave to appeal the sentence is sought on the grounds that the sentence was manifestly excessive as a result of errors made by the learned sentencing judge.
12. [12]
    Leave was granted to amend the proposed grounds of appeal.  There are two grounds of appeal.  The first ground of appeal is that the learned sentencing judge erred in making findings of fact that the applicant’s autistic spectrum disorder (ASD)  did not contribute to the offending and that the applicant was able to understand the consequences of his actions or the harm he caused the complainants.
13. [13]
    The second ground of appeal is that the sentence imposed was manifestly excessive.
14. [14]
    It is the severity of the custodial sentence, which is the subject of challenge, rather than the head sentence.  The applicant seeks orders that the sentence be set aside, and that the applicant be sentenced to four years’ imprisonment, suspended after serving nine to twelve months.

Circumstances of offending

15. [15]
    The facts agreed for the purposes of sentencing were set out in two schedules of facts.^[8]
16. [16]
    In respect of the Indictment 2 Offence, the applicant was 13 or 14 years of age at the time of the offending.  The applicant was the complainant’s step-uncle.  The complainant was 8 to 9 years of age at the time of the offending.  The applicant lived with his family, and the complainant would visit her grandparents regularly.  On the night of the offending, the complainant was asleep in her room with the light off and the door closed.  She awoke to the applicant in her room.  The applicant got into the complainant’s bed, took her pants off and put his penis inside her vagina.  The complainant was not able to recall how long this lasted, but she pushed the applicant off her.  The applicant told the complainant not to tell anyone because she would be in trouble.^[9]
17. [17]
    In respect of the Indictment 1 Offences, the applicant is the complainant’s uncle.  Four counts of indecent treatment of a child occurred between 1 January 2008 and 31 March 2010.  At the time of that offending, the applicant was 16 to 17 years of age, and the complainant was 5 to 7 years of age.  In Count 1, the applicant guided the complainant to masturbate him with her hand.  In Count 2, he pulled her pants down and rubbed her genitals over her underwear.  Count 3, a count of rape, followed Counts 1 and 2 in which the applicant inserted his penis into the complainant’s mouth.  Following that incident the applicant told the complainant not to tell anybody and that if she did, he would hurt her, no one would believe her, and she would be in big trouble.  Count 4 occurred a couple of months later and involved the applicant placing his hand up the complainant’s pants and rubbing her vagina on the outside of her underwear.  Count 5 involved similar conduct.  Count 6 of maintaining a sexual relationship with a child involves similar conduct to counts 4 and 5 that continued after the applicant turned 18 years of age, for a period of five years It lasted until the complainant was approximately 12 years of age and ceased when the complainant no longer visited her grandparent’s house.  The applicant was 23 years of age when the offending ceased.
18. [18]
    During sentencing, his Honour identified that there were several aggravating features involved, including the fact that there were two victims of the offending, both complainants were very young, threats were made to encourage the complainants not to disclose the offending, and the offending involved an act of penile intercourse and an act of oral sex.

The applicant’s antecedents

19. [19]
    The applicant was between 16 and 23 years of age at the time of the offending.  The indictments were presented in 2019 and a trial was initially listed.  The applicant entered pleas of guilty to each of the Indictment 1 Offences and the Indictment 2 Offence prior to the commencement of trial, and the trial was subsequently delisted.
20. [20]
    The applicant had no criminal history.  At the time of sentencing, he had not served any time in pre-sentence custody.
21. [21]
    The applicant suffers from ASD which led to him leading a socially isolated life, even more so after his offending.  How that condition interacted with his offending was discussed in a report of a forensic psychologist, Dr Palk.

Sentencing proceedings 

22. [22]
    The Crown identified the aggravating features referred to above and referred to a number of cases which it contended supported a total period of imprisonment of between five and six years.  The Crown submitted a parole eligibility date should be set after at least one third of the head sentence.  The Crown noted the majority of the offending took place while the applicant was a child, and that sections 140 and 144 of the Youth Justice Act 1992 (Qld) therefore applied.
23. [23]
    Counsel for the defendant submitted there were  a number of mitigating features that relevantly had to be taken int account, including the fact that the applicant’s parents were both in relatively ill health, and the applicant was diagnosed with ASD as a child.  It relied on letters written on the defendant’s behalf by his mother and sister and a report of Dr Palk.
24. [24]
    Counsel for the defendant submitted that there were a number of exceptional circumstances that justified the applicant not serving an actual term of imprisonment, including timely pleas of guilty, the fact he had no prior or subsequent convictions, there was a considerable lapse in time between his offending and his sentence hearing, most of the offending was at a relatively low level for offending of this type and did not involve ejaculation, incarceration was likely to cause him considerable hardship and have an adverse effect on his parents, he had been assessed as posing a low risk of reoffending, he had demonstrated a level of insight and remorse, and he had demonstrated the capacity to comply with a court order.
25. [25]
    In reliance on Dr Palk’s report, counsel for the applicant submitted that, consistent with the principles recently restated by Justice Bradley in R v Collard,^[10] the applicant’s psychological condition should attract a significant reduction in the weight to be attached to sentencing principles of punishment, general deterrence and denunciation.  The defence further submitted that Dr Palk’s report supported the fact that incarceration would be harder for the applicant as a result of his ASD than it was for most people.
26. [26]
    It was submitted by the counsel for the defendant that an overall head sentence of four years imprisonment was appropriate and that the learned sentencing judge should structure the sentence to provide for suspension of the sentence and probation.  It submitted that if the Court did impose a period of custody, it should provide for a parole eligibility below the usual one third mark.

Report of Dr Palk

27. [27]
    Dr Palk is a forensic psychologist who assessed the applicant in a number of sessions.
28. [28]
    According to Dr Palk, the applicant suffers from severe level 3 Autism (high functioning) with the onset beginning in childhood.  He found the applicant to generally function in the average range of intelligence, with low average verbal comprehension abilities.  He has perceptual reasoning skills and he found the applicant functions in the superior levels in that respect.  He considered the applicant’s processing speed and working memory are in the average range of intelligence.
29. [29]
    Dr Palk found the applicant’s profile to be marked by significant anxiety, inflexible attitudes, and social awkwardness.  He is introverted and socially isolated, with difficulties with interpersonal behaviour.  Dr Palk considers that he meets the diagnostic criteria for Social Anxiety Disorder.
30. [30]
    Dr Palk’s opinion was that the applicant’s “…low average verbal ability, social anxiety disorder and autism spectrum disorder would have contributed significantly to his sexual offending behaviour.”^[11]  Dr Palk considered that the applicant “fits the profile of the Inadequate Child Sex Offender as he suffers unusual, eccentric and/or psychiatric features due to his ASD”.^[12]
31. [31]
    In paragraph 8.23 of his report, Dr Palk stated that the applicant’s offending, which began when he was a teenager, was in a period when the applicant’s “sexual feelings would have begun to emerge and this factor combined with his symptoms of ASD … most likely contributed to him being more vulnerable to sexual offending and his sexual offending became a ritualistic pattern of behaviour when the opportunity arose.”
32. [32]
    At paragraph 8.24 of his report Dr Palk concluded that:

“Due to his ASD, and emotional and sexual immaturity it is unlikely that he would have been able to be aware of or fully understand the consequences of his actions or the harm he was causing the complainants.”

33. [33]
    Dr Palk also opined that incarceration would be more difficult for the applicant compared to other prisoners due to his ASD and severe social anxiety, and that it was likely to exacerbate his mental health concerns.^[13]

Response of the Crown

34. [34]
    The Crown did not provide any report in opposition to that of Dr Palk.  In relation to the report of Dr Palk, the Crown accepted that prison would be more challenging for the applicant due to his isolated lifestyle and his diagnosis of ASD.  However, it submitted that the suggestion that the applicant being vulnerable to child sex offending as an “inadequate child sex offender” was not a mitigating factor but rather a risk, and referred to an article of Dr Michael Davis in that regard.  The Crown challenged the suggestion by Dr Palk that the applicant was not aware of the consequences of his actions, arguing such a finding was inconsistent with the facts, namely his threats to the complainants.

Issues raised by the sentencing judge.

35. [35]
    Although the exchanges between the bench and counsel are not generally relevant to a consideration of the sentence imposed, it is of some relevance in the present appeal to identify the concerns raised by the learned sentencing judge and the opportunity counsel for the defendant was given to respond to those concerns.  His Honour raised a number of issues in relation to Dr Palk’s report.
36. [36]
    In the course of submissions, the sentencing judge asked defence counsel what particular aspects of the applicant’s condition made him more vulnerable to sexual offending, given that Dr Palk also stated those with ASD are no more likely to commit sexual offences than anyone else.  His Honour noted that it appeared from Dr Palk’s report it had to be something more than just situational.  His Honour also raised with counsel for the defendant that his Honour did not understand what the link was between the applicant’s ASD and his offending in the sense of what was it that drove the applicant or contributed to his offending in a manner that would reduce his moral culpability.  His Honour noted that while Dr Palk had set out academic literature on the topic, Dr Palk had not set out his basis for his conclusion in relation to the applicant.  His Honour further queried Dr Palk’s opinion that the applicant had a lack of understanding at the relevant time, given he told the complainants not to tell anyone what he did and made some threats if they did.  In that regard, defence counsel stated “I don’t think there’s any suggestion that he never understood it was wrong, or that he only now understands it was wrong.  It’s that he has now a full understanding and that he’s expressed a desire to never behave in a similar manner again.”

Decision of learned sentencing Judge

37. [37]
    His Honour imposed a period of imprisonment of four years, with the applicant being eligible for parole after having served one-third of the sentence.
38. [38]
    During sentencing remarks his Honour took into account of:

    1. (a)
       the applicant’s plea of guilty before trial;
    2. (b)
       the circumstances of the offending for each offence;
    3. (c)
       the aggravating features of the applicant’s conduct, which I have referred to earlier;
    4. (d)
       the fact the most serious offending, namely that of rape, occurred when the applicant himself was a child;
    5. (e)
       that s 9(4) and s 9(6) of the Penalties and Sentences Act 1992 (Qld) applied to the offending as well as other matters in s 9, and that the offending required that imprisonment for the offences included actual imprisonment, unless there were exceptional circumstances;
    6. (f)
       the applicant had no prior criminal history;
    7. (g)
       the convictions will have the result that the applicant will become a reportable offender; and
    8. (h)
       that the applicant’s parents support him, and have suffered from ill health, and the applicant’s incarceration would have some impact on them.
39. [39]
    As to the applicant’s condition of ASD and Dr Palk’s opinion, his Honour stated that:

“You have seen Dr Palk, a psychologist, for a number of sessions. You told Dr Palk that you did not consider the consequences of your actions at the time, and in this regard Dr Palk says at paragraph 8.24:

Due to his ASD and emotional and sexual immaturity, it is likely he would have been unable to be aware of or fully understand the consequences of his actions or the harm he was causing the complainants.

I do not accept that. You warned both children not to report what you had done, and that clearly indicates that you were aware, at the time, that what you were doing was wrong, and that you would face adverse consequences if it were to be found out. It may be that you have developed a clearer understanding now, of just how wrong it was that you engaged in this behaviour. But I do not accept that you were unaware of it, at the time. If your ASD has contributed to your offending, a matter which has not been made clear to me, I cannot see that it is a significant matter in that it reduces your moral culpability to a degree that ought to result in a substantially different sentence than would otherwise be appropriate.

I do not think your ASD places you in a position that is very different to anyone else who might be sentenced for offending of this kind. Dr Palk assessing you to be a low risk of reoffending. It does not appear to me that there has been any specific inquiry about whether you have any deviate sexual interests, but, perhaps, the fact that you have not offended, now, for many years, is sufficient to confirm Dr Palk’s opinion that you are a low risk of reoffending.”

40. [40]
    The sentencing judge identified that the applicant had three different sets of offending – that of rape, indecent treatment and maintaining.  He considered what an appropriate sentence would have been in relation to those three sets of offending individually.  His Honour had regard to the fact that, other than the charge of maintaining, the applicant would have been sentenced as a child at the relevant time.  His Honour then looked at the sentences globally, and moderated the sentence to reflect the overall criminality of the applicant’s conduct.  On that basis, his Honour considered that a starting point of four and a half to five years imprisonment overall would be appropriate.  His Honour then stated:

“I am going to further moderate that overall period of imprisonment to reflect that you have ASD and to acknowledge it is likely to make the time that you will serve in prison more difficult than it would otherwise be.”

41. [41]
    His Honour therefore determined that he would impose a sentence that would have the effect of imprisoning the applicant for four years, and would provide for parole eligibility after one third of the sentence.

Grounds of Appeal

42. [42]
    His Honour therefore determined that he would impose a sentence that would have findings of fact, against the weight of the evidence that:

    1. (a)
       The applicant’s ASD did not contribute to the offending; and
    2. (b)
       The applicant was able to understand the consequences of his actions or harm he caused the complainants.

Ground 1(a) – autism spectrum disorder

43. [43]
    The applicant submits that, contrary to the primary judge’s sentencing remarks, Dr Palk outlined how an ASD diagnosis can contribute to child sex offending.  The applicant submits that Dr Palk’s findings in relation to the applicant were clear, and Dr Palk referred to studies to explain his position.  It directed the Court to a number of passages from Dr Palk’s report which include those outlined above.
44. [44]
    The applicant submits that given the fact that the proposition that ASD contributed to the applicant’s offending was not challenged by the Crown, and there was nothing before the Court to rebut Dr Palk’s opinion, his Honour erred in not acting on the basis of the opinion.  The applicant submits that given it was not disputed, his Honour should have acted on it in determining the appropriate sentence having regard to s 132C of the Evidence Act 1977 (Qld).
45. [45]
    The applicant refers to the case of R v Field [2017] QCA 188 as setting out the proper approach to whether or not a judge acts on the basis of a fact when sentencing.  In that case, the Court of Appeal considered the question of when a sentencing judge may decline to act upon a matter that is not expressly put into controversy.^[14]  The Court stated that the word “may” in s 132C of the Evidence Act 1977 (Qld) means that a sentencing judge does not necessarily need to act upon an allegation, even if it is admitted or not challenged.^[15]  The Court explained that:

“A sentencing judge is not obliged to accept assertions made from the Bar table even if the prosecution leads no evidence to the contrary and even if the prosecution is silent about the matter. However, the judge's inclination to reject such a matter of asserted fact must be made known to the offender and a reasonable opportunity must be offered to make good what has only been asserted. Even when evidence has been tendered to prove the contentious fact, a judge is not obliged by the statute to accept such proof. However, in all cases, whether involving mere assertions of fact or involving evidence called to prove such an assertion, the usual principles that govern a judge's acceptance or rejection of disputed facts apply including that the judge's decision must be justified by reasons.”^[16]

46. [46]
    While the Crown did not specifically challenge Dr Palk’s opinion that there was a link between the applicant’s ASD and the applicant’s offending, it did challenge aspects of Dr Palk’s opinion as outlined above.  That is, however, more relevant to the second point of this ground of appeal.
47. [47]
    The applicant submits that, considering the impact that the finding should have had on the applicant’s moral culpability, it was an error for the learned primary judge to find otherwise, and his Honour’s reasons as to the findings on this point fell short of a proper explanation.
48. [48]
    The Crown submits there were conflicting statements in Dr Palk’s report about the link between ASD and sexual offending insofar as Dr Palk had commented that “key factors for child sex offending appear to be the same for individuals without ASD …” and “… individuals with ASD rarely commit contact sexual offences and those that do are no more likely to offend than are individuals without ASD.  However, it is important to note that the symptoms of ASD …may contribute to these individuals being more vulnerable to sexual offending and their sexual offending may not be due to malice.”
49. [49]
    The Crown contends that, given the conflicting nature of the opinion within the report  and the incompatibility of the opinion with the applicant’s conduct in telling the complainants not to reveal him, it was open for his Honour to conclude that there was an absence of evidence that correlated the ASD to the offending.  The Crown therefore contends that it was open for his Honour to adopt the course that his Honour did.

Consideration

50. [50]
    If the applicant’s ASD impaired his mental functioning in connection with the offending, it may reduce moral culpability so as to affect the punishment that is just in all of the circumstances.^[17]  In R v Verdins (2007) 16 VR 269, which has been followed by this Court,^[18] the Victorian Court of Appeal stated that:

“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends 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, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.”^[19]

51. [51]
    There is no doubt that the opinions in Dr Palk’s report were relevant considerations to which the Court was bound to take into account, consistent with the principles set out in R v Verdins.^[20]  What weight a sentencing judge has to attribute to such opinions is however a matter that falls within the sentencing judge’s discretion.
52. [52]
    As was stated in R v Field,^[21] a sentencing judge is not obliged to accept a fact, even if that fact is undisputed.  In the present case, it was clear that his Honour did take issue in the reasoning of Dr Palk’s report and how the ASD was connected with the applicant’s offending, as has been set out above.  There is therefore no question that defence counsel was put on notice as to those concerns and was given the opportunity to respond.
53. [53]
    However, it is a mischaracterisation of his Honour’s reasons to suggest that his Honour rejected the link between the applicant’s ASD and his offending.  While his Honour stated that he found it difficult to identify the link between the ASD and the applicant’s offending, his Honour still considered how it affected the applicant’s moral culpability, acting on the basis that there was such a link.  In that regard, his Honour did not consider that it was a significant matter which would reduce the applicant’s moral culpability to a degree that would result in a substantially different sentence.  It was evident from his Honour’s further reasons that his Honour regarded the fact that the applicant made threats to the complainants not to tell anyone about his conduct as demonstrating that the applicant was aware that what he was doing was wrong and he would face adverse consequences if found out, as militating against the applicant’s ASD reducing his moral culpability in respect of his offending.
54. [54]
    The fact that Dr Palk stated there was a link between the applicant’s ASD and his offending, in unequivocal terms, does not suggest that his Honour failed to take account of Dr Palk’s opinion or that his analysis of the significance of the report was in error.  While Dr Palk stated the applicant’s ASD made the applicant vulnerable to offending, it is unclear how or whether it is directly linked to his offending other than in terms of his understanding of the consequences of his actions or the harm caused to the victims.  This is particularly so as Dr Palk’s survey of the relevant literature does not suggest that suffering from ASD makes an individual more likely to engage in sexual offending, particularly against children, than individuals without ASD.  Dr Palk’s opinion, including the opinion that the applicant is more vulnerable to risk of offending, does not suggest that the applicant was unable to control his actions or was affected in the ways identified in R v Verdins,^[22] such that denunciation or general deterrence were less relevant as sentencing considerations.
55. [55]
    His Honour did adjust the sentence, however, to reflect the fact that the applicant had ASD and that his time in prison was likely to be harder than it would otherwise be.  His Honour reduced the head sentence to the lowest end of the range that his Honour considered was appropriate for the applicant’s overall offending, namely four years.  That recognised that the applicant’s ASD was relevant, at least in one of the respects identified by the Court of Appeal in R v Verdins,^[23] when impaired mental functioning could be relevant to sentencing.
56. [56]
    The sentencing judge set out sufficient reasons for the approach his Honour adopted.  His Honour’s reasons reflect that the applicant’s ASD was a matter which he took into account in moderating the sentence.  The weight his Honour chose to ascribe to the opinions of Dr Palk was a matter within his Honour’s discretion.^[24]  No error of law has been demonstrated.
57. [57]
    This ground of appeal fails.

Ground 1(b) – understanding of consequences

58. [58]
    As set out above, Dr Palk opined that it was unlikely that the applicant was aware or fully understood the consequences of his actions and the harm he caused to the complainants.^[25]
59. [59]
    The applicant submits that the sentencing judge erred in challenging the finding of Dr Palk that it is unlikely that the defendant would have been aware of, or fully understood, the consequences of his actions or the harm he was causing, due to the fact that the applicant threatened both complainants, which his Honour inferred meant that he knew he would face adverse consequences if they reported him, and that his actions were wrong.
60. [60]
    The applicant  submits that in doing so, the sentencing judge misconstrued the meaning of Dr Palk’s opinion, as there is nothing in the opinion of Dr Palk which suggests that the applicant could be aware of the consequences of his actions but not of the effect on the complainants.  The applicant submits that it simply points to a position that the applicant had the capacity to be aware his actions could get him into trouble, but not the capacity to be aware of the consequences or harm.  The applicant contends that his Honour’s reasons fell short of a proper explanation.
61. [61]
    The applicant further submits there was little evidence to rebut Dr Palk’s opinion.  Therefore, the learned primary judge should have been satisfied on the balance of probabilities that Dr Palk’s opinion was sound.
62. [62]
    The Crown submits that the opinion of Dr Palk was linked, in terms of its conclusion, as to the awareness of the applicant of the consequences of his actions and the harm caused to the complainants.  The Crown submits that his Honour was therefore entitled to reject Dr Palk’s opinion in that regard in its entirety.

Consideration

63. [63]
    His Honour rejected the opinion of Dr Palk on the basis that he considered it was contrary to the facts.  His Honour inferred that the threats made to the complainants in the present case demonstrated that the applicant had insight into the fact that his actions were wrong.  That is an inference that was properly open to his Honour, given the threats made.
64. [64]
    There is a distinction between being aware that one’s actions are wrong and can get one into trouble, as opposed to being aware that one’s actions are causing harm to the victim.  It is true, as was submitted on behalf of the applicant, that the fact that threats were made by the applicant does not belie the fact that he did not understand, or fully understand, the harm that his actions were inflicting upon the complainants.
65. [65]
    While the sentencing judge did not consider separately whether the applicant’s moral culpability was reduced because he was unaware of the harm caused to the complainant, a lack of empathy for the victim will rarely be a basis upon which the Court will find that moral culpability of the offender should be reduced.  Although the categories outlined in R v Verdins^[26] are not exclusive, it is not evident  how the lack of an ability to perceive the harm to a victim could reduce moral culpability or reduce the significance of sentencing considerations when the offender is aware that his or her actions are wrong and takes steps to conceal those actions.  His Honour was therefore not in error in not considering separately whether the lack of understanding of the harm caused to the complainants reduced the applicant’s moral culpability.  In any event, it is evident from the discussion above that his Honour did not consider that the applicant’s ASD was a significant matter that reduced the complainant’s moral culpability, given his Honour’s conclusion that the applicant was aware his actions were wrong.
66. [66]
    This ground of appeal is not established.

Ground 2 – manifest excess

67. [67]
    The applicant argues that the sentence failed to give weight to the applicant’s mental capacity, age at the time of offending and low level of risk with regard to future offending.  The applicant concedes that the learned sentencing judge discusses these factors in his Honour’s remarks, but the penalty imposed failed to reflect proper consideration of such factors.  It contends that the appropriate sentence is one which provides for an overall sentence of four years suspended after nine or twelve months.
68. [68]
    In order for an appellate Court to intervene on the basis of manifest excessiveness or inadequacy, the Court must conclude that there must have been some misapplication of principle, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases.^[27]  If the sentence is unreasonable or plainly unjust, the Court will infer that there has been a failure to properly exercise the discretion at the first instance.^[28]  It is not sufficient to show that the sentence is markedly different from sentences in other cases.^[29]
69. [69]
    In the present case, the applicant contends that the learned sentencing judge failed to give weight to the applicant’s mental capacity, age at the time of the offending, and low level of risk in regards to the risk of future offending.  As was conceded by counsel for the applicant, all of those matters were explicitly considered by his Honour in his reasons.  The applicant contends that the penalty imposed failed to reflect proper consideration of those factors.
70. [70]
    The sentencing judge was cognisant in his Honour’s reasons that he had to have regard to the fact that, for a number of offences, the applicant was a child.  Therefore, his Honour had to have regard to what might have been the sentence imposed, had the applicant been dealt with as a child.  His Honour also stated that when considering the aggravating features of his conduct, the applicant was “… a child yourself when you committed the most serious offences”.  In considering the applicant’s overall culpability, his Honour had examined the three sets of offences individually and what sentence would have been imposed if the applicant was sentenced as a child.
71. [71]
    The applicant’s mental capacity, while at the lower end of the range of average intelligence, was not at a level, nor was it suggested by Dr Palk, to mean that the applicant lacked the intellectual capacity to understand his actions were wrong.  Dr Palk identified the applicant’s limitations in conjunction with the applicant’s ASD, which his Honour considered, as discussed above.
72. [72]
    As counsel for the applicant conceded, his Honour raised whether Dr Palk had asked the applicant any questions to identify the fact that the applicant had a low risk of future offending.  The sentencing judge did consider that the lack of offending for many years was perhaps “sufficient to confirm Dr Palk’s opinion” that the applicant had a low risk of reoffending.
73. [73]
    The applicant contends that the sentence should have provided for nine or twelve months in custody before the applicant was eligible for parole, as opposed to the 16 months imposed by the sentencing judge.  While not an insignificant difference, that is a difficult argument to mount.  As was stated by the majority of the High Court in Markarian v The Queen,^[30] there is no single correct sentence.
74. [74]
    His Honour also set the parole eligibility at one third to account for the various mitigating factors after moderating the head sentence to reflect the applicant’s ASD and the hardship that he will suffer when serving his sentence over and above others.  Notwithstanding Dr Palk’s opinion that the applicant was a low risk of reoffending, the imposition of parole rather than suspension of the sentence was open to his Honour, particular having regard to Dr Palk’s opinion that the applicant would benefit from ongoing treatment and that he would most likely be compliant with guidance and supervision.  While his Honour could have set parole eligibility at less than one third, his Honour’s determination not to do so does not suggest any error in the exercise of his discretion.  It is evidence that his Honour took into account all of the matters in question in exercising his sentencing discretion.
75. [75]
    The sentence was a difficult and complex one.  No case has been identified to this Court which suggests the sentence is discordant with the approach in comparable cases, or with the statutory regime which applies under the Penalties and Sentences Act 1992 (Qld).^[31]  There is nothing to support an argument that the sentence was so excessive so as to reveal that there was an inherent error in the exercise of his Honour’s discretion.^[32]
76. [76]
    The second ground of appeal should also fail.
77. [77]
    In the circumstances leave to appeal is not warranted and the appeal should be dismissed.

Conclusion

78. [78]
    I would propose the following orders:

    1. Application for leave to amend the grounds of appeal is granted.
    2. Leave to appeal is refused.
79. [79]
    Given the offences were committed against the complainants when they were children, and the complainants would otherwise be readily identifiable, the name of the applicant in these reasons has been anonymised.