The case confirms that under s 36(e) of the Crimes Act 1958 (Vic), the concept of incapacity to understand the sexual nature of an act focuses on the intellectual or mental capacity of the complainant, and that evidence of the complainant's actual lack of understanding, combined with evidence of intellectual disability, can support a finding of incapacity. An accused's own statements acknowledging the complainant's intellectual limitations can constitute sufficient proof of awareness of the complainant's lack of capacity to consent. Statistical quartile-based approaches to characterising offence seriousness are inconsistent with proper sentencing principles.
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