Anthony Devereaux v The Queen
[2019] VSCA 6
•31 January 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0191
| ANTHONY DEVEREAUX | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 January 2019 |
| DATE OF JUDGMENT: | 31 January 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 6 |
| JUDGMENT APPEALED FROM: | DPP v Devereaux [2018] VCC 1128 (Judge Chettle) |
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CRIMINAL LAW – Appeal – Sentence – Sentence of 3 years, 3 months’ imprisonment for one charge of blackmail, sentence of 2 years with 9 months cumulation for one charge of making threat to kill, sentence of 9 months with no cumulation for one charge of using carriage service to harass – Offending in course of 24 telephone conversations between applicant and victim in period of 27 hours – Offending occurred after applicant’s partner told him that victim had sexually abused her when she was 8 years old – Whether sentence and order for cumulation for threat to kill charge manifestly excessive – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | James Dowsley & Associates |
| For the Respondent | Mr B L Sonnet with Mr T J Bourbon | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA:
Introduction and summary
The applicant pleaded guilty to the charges set out in the following table and, on 10 July 2018, he was sentenced as set out in that table.[1]
[1]DPP v Devereaux [2018] VCC 1128 (‘Sentencing remarks’).
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Use a carriage service to harass [Criminal Code Act 1995 (Cth) s 474.17] | 3 years | 9 months | – |
| 2 | Blackmail [Crimes Act 1958 s 87] | 15 years | 3 years, 3 months | Base |
| 3 | Make threat to kill [Crimes Act s 20] | 10 years | 2 years | 9 months |
| Total Effective Sentence: 4 years | ||||
| Non-Parole Period: 2 years, 6 months | ||||
| Pre-Sentence Detention Declared: 26 days | ||||
| 6AAA Statement: 5 years, 6 months with non-parole period of 3 years, 6 months | ||||
The victim of the offending is the nephew of the foster parents of the applicant’s partner, to whom I will refer as AB. The applicant and the victim had never met. On 25 December 2016, AB told the applicant that the victim had sexually abused her when she was 8 years old, and in foster care, and the victim was around 20 years old.
In the period of 27 hours between 6:00 pm on 26 December 2016 and 8:24 pm on 27 December 2016, while he was affected by alcohol, the applicant engaged in 24 telephone conversations with the victim and made various demands and threats due to the alleged sexual offending.[2] They included demands that the victim give his motor vehicle and $50,000 to the applicant otherwise the applicant would have the victim imprisoned and ruin his life, and threats to kill the victim.[3] The applicant and the victim recorded some of the conversations. The victim denies that he sexually abused AB.
[2]The applicant made 23 calls to the victim and the victim made one call to the applicant.
[3]The judge stated that the applicant made three threats to kill: Sentencing remarks [2]. However, the applicant was charged with a single charge of making a threat to kill and was sentenced on that basis.
The applicant seeks leave to appeal against his sentence on the sole ground of manifest excess. That ground is in the following terms:
When regard is had to the following circumstances:
• the early plea of guilty and the stage at which it was entered,
• the personal circumstances of the applicant,
• the limited duration of the offending, and
• the time the applicant spent in residential rehabilitation
the individual term of imprisonment on charge 3, and the order for cumulation, was productive of a total effective sentence and non-parole period that are manifestly excessive.
For the reasons that follow, the application for leave to appeal will be refused.
The circumstances of the offending
The circumstances of the offending are described in the detailed prosecution opening which quotes extensively from the recorded conversations between the applicant and the victim. The following extracts from the prosecution opening sufficiently illustrate the nature and seriousness of the offending:
[The applicant] told [the victim] he wanted to ‘break your legs with hammers, smash your face in, I almost wanna kill ya’. He then went on to say he wanted to put [the victim] in his Lexus, ‘and smash it up and put [it] into a crusher’ because he was angry at him.
…
[The applicant] told [the victim] that he’d done ‘research’ on him … and that he had ‘enough evidence’ to put him in gaol for the rest of his life …
[The applicant] told [the victim] it wasn’t blackmail, but that [the victim] had three choices: he could ‘do a payout’ to [AB]; [the applicant] or someone else could go to [the victim’s] house; or [the victim] could ‘go to court and lose [his] family’.
…
On one occasion [the applicant] said there was no need to be scared of him, and then said he would throw [the victim] on the ground so quick and break his neck and break his bones so quickly he’d be surprised. He continually emphasised the fact that, even though he weighed only 80 kilograms, he was ‘on steroids’ and would put [the victim] on the ground and ‘rip [him] a new arsehole’. He commented that he was in trouble for being violent, because he ‘stuck up for the truth’.
…
[The applicant] said [the victim] was asking ‘how am I gunna make it better? What, you give 50 grand to [AB]? You give her a hundred grand? I don’t know how the fuck you’re gunna do it’.
…
[The applicant] said the two [of them] should not ‘fuck around with each other, because you might not know much about me. I’m not here to threaten you and if you ever call the police on me that’ll be the last thing you’ll ever do’.
…
[The applicant] called [the victim] at 4.50am on 27 December 2016, again using [AB’s] phone. He said he would come to [the victim’s] house to hurt him and demanded he ring again, or he would be there in 5 minutes. He told the victim he had one more day to make up his mind about what to do: let [the applicant] fuck up his family or smash the shit out of him. [The applicant] then terminated the call. [The victim] attempted to call [the applicant’s] number (which [the applicant] had given him in one of the earlier calls), however was unable to get through.
…
[The applicant] repeated that he had ‘research’ on [the victim] and could ‘fuck [him] up’ financially and mentally and take his life right now, ‘but how are we going to fix this up? You drive your Lexus over here and you sign into my name right now, and — 25 grand — whatever, you get all the money in your house … or you go and do gaol time.’ He said if [the victim] did not do what he was told, then he would put him in gaol. He suggested [the victim] take out a loan and find a way to explain it to his wife otherwise [his poor wife] was going to have a phone call from him, and then his whole family would see who he was and he was going to lose everything anyway. He said, ‘do you understand how crucial this is … it’s not blackmail, it’s reality’. ‘If you don’t do what I say, I’m … gunna strip you from your life’.
[The applicant] also made further threats of violence towards [the victim], saying he was going to put him on the ground and ‘bust your fucking brains to the ground. If you call that a threat, that’s good, call the cops, cause then I’m gunna … take you [to] court and I’m gunna fuckin’ take away your life’ . He warned [the victim] not to fuck him around because he knew where he lived and would ‘come around there so quick and fuckin’ rip your fuckin’ neck off and kill you straight away, you wouldn’t even fuckin’ know I was coming’.
[The applicant] also said if [the victim] did not do what he was told, he might as well put a gun to his head and blow his head off.
[The victim] asked whether he could have 24 hours to comply, and [the applicant] said he had one hour (later extending that to two hours). When [the victim] pointed out he couldn’t get that money in an hour, [the applicant] said he was to drive his car over there in one hour, and provided his address … He said if [the victim] didn’t do it, he would be going to gaol. He said, ‘Nothing’s gunna change for [AB] but you’re gunna … give me that Lexus. You’re gunna give me 50 grand … otherwise I’m gunna put you in gaol for fuckin’ 20 years’. He also said [the victim] would be imprisoned if he contacted the police.
[The applicant] terminated the call then called back a short time later. [The victim] was still in the car, and again recorded the call. During this call, [the applicant] told him that he had recorded their earlier conversations and that, if [the victim] did not sign over the Lexus to him (he later said [AB]) that night, he was going to use the recordings, take [the victim] to court, and he was going to lose his family. He said the recordings would ‘indict’ [the victim] for the rest of his life, in prison.
[The applicant] repeated that [the victim] could lose the Lexus that night or go to gaol for 20 years and lose everything he had. He said if [the victim] did not pay [AB] $50,000, he would tell [the victim’s] wife. He said, ‘That’s a small price to pay for what you fuckin’ did, and I’ve recorded it all’.[4]
[4]Citations omitted.
Shortly after the final conversation between the applicant and the victim, the victim reported the matter to police. The victim told police that he was very scared and shocked when he received the applicant’s calls and was concerned that the applicant would make good on his threats. He also said that he could hear AB in the background asking the applicant to calm down. In a victim impact statement, the victim said that, as a result of the offending, he developed severe diarrhoea and was hospitalised for three days. He said he was in fear of his life and has begun to take anti-depressant medication. He slept with a knife under his pillow and felt trapped in his own home. He constructed a high fence and installed security cameras at his home in order to protect himself from the applicant.
AB told police that after she had informed the applicant of the alleged sexual abuse by the victim, the applicant would get worked up and call the victim and would then be calm again. She stated that she had not asked the applicant to contact the victim or make demands on her behalf. She said that on a number of occasions, she had told the applicant to let it be and move on.
In his record of interview, the applicant made admissions about his conversations with the victim. He denied making — or said he did not recall — some of the threats alleged against him. He said that he felt angry at the victim. He claimed that no one had protected AB and that ‘sometimes you’ve got to speak up’ and not ‘let people get away with this’.
The applicant’s personal circumstances
The applicant was 47 years of age at the time of the offending and 49 at the time of sentencing. He was educated to Year 12 and then completed a diploma of food technology. He worked in the food industry for about 13 years. He was involved in a motor vehicle accident in 1994 that interfered with his ability to work for some time. He had intermittent work between 2004 and 2013 and has not worked at all since 2013.
The applicant has a long history of illicit drug use and abuse of alcohol. He began using cannabis at the age of 20 and has also used cocaine and ecstasy. He has used amphetamine for the last 5 years. In 2015, he underwent a 14 month in-house rehabilitation program at Windara. Between 4 January 2018 and 20 April 2018, he completed three and a half months of an in-house rehabilitation program at Odyssey House. He did not remain to undertake phase 2 of that program. Since leaving Odyssey House, he has continued to drink alcohol, albeit at a reduced rate.
The applicant has been married twice and has an 18-year-old-daughter. His relationship with AB ended in March 2017 and, until he was remanded in custody for the current offending, he had been living predominantly with his new partner. He receives a carer’s pension relating to her, as she suffers from fibromyalgia. She continues to support him.
The applicant suffers from anxiety and meets the criteria for avoidant personality disorder. He experiences feelings of inadequacy and is sensitive about what others think of him.
The applicant has a relevant criminal history. On 23 November 2010, he was fined $500 without conviction for criminal damage and unlawful assault. On 9 May 2011, he was placed on a community based order (‘CBO’) for 12 months for criminal damage. The duration of the CBO was increased to 18 months on 20 September 2011. On 7 August 2012, he breached the CBO and was sentenced to 3 months’ imprisonment wholly suspended for 2 years. On the same day, he was placed on a community correction order (‘CCO’) for 12 months in respect of three charges of threatening to inflict serious injury, and one charge each of recklessly causing injury, wilful damage to property and criminal damage. On 20 October 2016, he was placed on a new CCO for 12 months for contravening a family violence safety notice. He was serving this CCO at the time of the current offending.
Sentencing remarks
The judge described the offending as ‘a mid-level example of both blackmail and threat to kill’.[5] He said that the applicant knew the effect that alcohol had on him and took the risk of both drinking and offending. He did not accept that the offending was spontaneous. He said that was because it took the applicant a day to react to being informed by AB of the alleged sexual abuse and, once he commenced to threaten and extort the victim, he persisted with 23 telephone calls over the course of 24 hours.[6] The judge continued:
[The applicant’s] offending was planned, albeit through an alcoholic filter, and it was persistent. It may well be that [he] genuinely believe[d] that [AB] had been sexually abused by [the] victim. That opinion or view is totally irrelevant to sentencing. Whether [the] victim had or had not abused [AB] is not a relevant consideration in imposing an appropriate sentence for [the applicant]. [He] had absolutely no justification in threatening and extorting [the victim]. [The applicant is] not the law. [He] saw an opportunity to make [a] gain for [his] partner and [himself], [he] terrorised and threatened [the] victim repeatedly. [The victim] suffered both psychological and physical damage as a result. Further … [the applicant was] undergoing [a] community corrections order at the time of [his] offending that aggravates that offending.[7]
[5]Sentencing remarks [11].
[6]See [3] and n 2 above.
[7]Sentencing remarks [13].
The judge said that, although there was a substantial overlap between the three charges, the applicant had made harassing and threatening statements using a carriage service which did not fall within the blackmail and threat to kill charges. He said that he has been ‘alert to avoid issues of double punishment when considering appropriate sentences for each charge’.[8]
[8]Sentencing remarks [12].
The judge accepted that the factors affecting the applicant’s mental health will make his time in custody more onerous than it would for a person unaffected by those factors. He reduced the applicant’s sentence due to his guilty plea and gave him credit for his stay in residential care at Odyssey House between 4 January 2018 and 20 April 2018. The judge said that he took into account the significant admissions the applicant made to police and assessed his prospects for rehabilitation as reasonable, provided he dealt with his alcohol addiction.
The judge said that the principles of general deterrence, just punishment and denunciation dictated that a significant term of imprisonment should be imposed, as the applicant’s offending was serious and he had relevant prior convictions. He said that he gave full weight to the principle of general deterrence but noted that specific deterrence was less important, as the applicant was unlikely to offend in the future provided he controlled his abuse of alcohol.
Parties’ submissions
The applicant submitted that the sentence of 2 years and the order for cumulation of 9 months for the make threat to kill charge are manifestly excessive and consequently the total effective sentence and the non-parole period are manifestly excessive. He relied on the following in support of that submission:
(a)He had pleaded guilty at an early opportunity and made substantial admissions. The guilty plea was accompanied by remorse and was of considerable utilitarian benefit.
(b)He had spent over three months at Odyssey House to address his dependence on alcohol.
(c)The judge had found that his prospects of rehabilitation were reasonable provided he addressed his alcohol dependence.
(d)While his offending was serious, the fact that it occurred after AB had informed him that the victim had sexually abused her ‘colours’ the context in which the offending occurred.
(e)The duration of the offending was relatively limited and comprised a single course of conduct in that the use of the telephone to threaten the victim was for the ultimate end of securing the property sought.
(f)While modest cumulation may have been required for charge 3 to reflect the separate criminality, the cumulation of 9 months was manifestly excessive.
The applicant argued that a comparison between the sentence and order for cumulation in respect of charge 3 in the present case and the sentences and orders for cumulation that were the subject of four recent decisions of this Court supports his contention that the former are manifestly excessive. The four cases are Dickman v The Queen [No 2],[9] Cao v The Queen,[10] Samuels v The Queen[11] and Henson v The Queen.[12] The applicant noted that the threats to kill in those cases were more serious and were made in a confrontational context, and that three of the cases involved a conviction following a trial. He observed that, notwithstanding those features, the sentences and orders for cumulation for the threats to kill in those cases were either the same or lower than those in the present case.
[9][2017] VSCA 351 (‘Dickman’).
[10][2018] VSCA 98.
[11][2018] VSCA 251.
[12][2018] VSCA 283.
The Crown submitted that no aspect of the sentence was manifestly excessive. It contended that the judge had taken into account all of the mitigating factors on which the applicant relied. In relation to the context in which the offending occurred, the Crown noted that AB had never asked the applicant to contact or make any demands on the victim and that, upon being told of the alleged sexual abuse, he acted on his own initiative and enthusiastically commenced terrorising the victim. The Crown contended that the three separate threats to kill that the applicant made were graphic and intimidating and the victim feared that they would be carried out.
The Crown contended that it is not reasonably arguable that the sentence of 2 years and the cumulation of 9 months for charge 3 are manifestly excessive having regard to the judge’s categorisation of the offending as ‘mid-level’[13] and the applicant’s relevant prior offending.
[13]See [15] above.
Decision
In my opinion, it is not reasonably arguable that any aspect of the sentence is manifestly excessive.
The applicant made an express and unambiguous threat to kill the victim when he said that he would ‘come around there so quick and fuckin’ rip your fuckin’ neck off and kill you straight away’. He also made other statements which could be construed as threats to kill.[14] However, he was charged with, pleaded guilty to, and was sentenced for, a single charge of making a threat to kill.
[14]Those statements include ‘that’ll be the last thing you’ll ever do’, ‘take his life right now’, ‘I’m … gunna strip you from your life’ and ‘I’m gunna fuckin’ take away your life’.
While that threat to kill was made in the course of the same telephone conversations in which the demands that constituted the offence of blackmail were made, it was of a distinct and serious nature and caused the victim to fear for his life. Having regard to the judge’s characterisation of the offending as ‘mid-level’ — which finding has not been challenged — and the 10 year maximum penalty for the offence, the sentence of 2 years’ imprisonment cannot be regarded as manifestly excessive.
Further, the separate criminality constituted by the threat to kill required the judge to impose a separate sentence for that offence and to order a meaningful period of cumulation. This is particularly so having regard to the fact that the applicant had three prior convictions for the offence of threatening to inflict serious injury and one conviction for the offence of recklessly causing injury. He committed those offences while he was affected by alcohol. This prior offending and the fact that the current offending was committed while the applicant was serving a CCO illuminated his moral culpability and heightened the importance of specific deterrence as a sentencing consideration.[15] In all the circumstances, the order for cumulation made by the judge was appropriate.
[15]Veen v The Queen [No 2] (1988) 164 CLR 465, 477; R v O’Brien [1997] 2 VR 714, 718; Dirbass v The Queen [2018] VSCA 272 [48], [52].
The applicant has not complained that the judge failed to take into account any relevant sentencing considerations. This is not surprising, as the judge expressly referred to, and gave credit for, all the mitigating factors upon which the applicant relied.
I do not accept the applicant’s contention that the fact that the offending occurred as a result of AB informing him of the alleged sexual abuse provided any basis for moderation of the sentence. AB did not request the applicant to make any demands on the victim. On the contrary, she told him to let it be and move on. While AB’s statement to the applicant that the victim had sexually abused her provided an explanation for the applicant’s offending, it cannot be regarded as a mitigating circumstance.[16]
[16]In some circumstances, the fact that an offender has taken the law into his or her own hands by harming, or threatening to harm, a perceived wrongdoer may heighten the importance of specific and general deterrence as sentencing considerations. However, as this issue was not raised on the plea and was not taken into account by the judge, it can be put to one side.
I also do not accept that the period of 27 hours over which the offending occurred can be accurately described as ‘relatively limited’. Even if that description were apt, it would not lessen the seriousness of the offending. The offending involved 24 separate telephone conversations. It was persistent and intense and had the effect of terrifying the victim. He became physically ill and was hospitalised for three days. He had serious ongoing concerns about his safety, as evidenced by the installation of security cameras and the construction of a high fence on his property.
The four cases on which the applicant relied do not assist his submission that the sentence and order for cumulation for charge 3 are manifestly excessive. So-called comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case.[17] In R v Kilic,[18] the High Court made it clear that the ground of manifest excess cannot be made out simply by establishing that an offender received a sentence that was the same as, or higher than, sentences in other cases that involved more serious offending.[19]
[17]See, eg, Djordjic v The Queen [2018] VSCA 227 [74]; Sutic v The Queen [2018] VSCA 246 [97] (‘Sutic’).
[18](2016) 259 CLR 256 (‘Kilic’).
[19]Kilic (2016) 259 CLR 256, 268 [24].
Moreover, in Director of Public Prosecutions v Dalgliesh,[20] the High Court stated that a sentencing court will fall into error if it treats current sentencing practices as an obstacle to imposing a sentence that is appropriate in all the circumstances of the case.[21] It also held that current sentencing practices is one of a number of relevant sentencing considerations but it is not a controlling consideration.[22] The duty of a sentencing court is to impose a just sentence according to law, even where an offender has pleaded guilty in light of current sentencing practices.[23]
[20](2017) 349 ALR 37 (‘Dalgliesh’).
[21]Dalgliesh (2017) 349 ALR 37, 55 [84], n 89, [85], n 91. See also Sutic [2018] VSCA 246 [58].
[22]Dalgliesh (2017) 349 ALR 37, 40 [9], 51 [68]. See also Sutic [2018] VSCA 246 [58].
[23]Carter v The Queen [2018] VSCA 88 [80]. See also Sutic [2018] VSCA 246 [59].
In any event, the four cases upon which the applicant relied can be distinguished. In each case, the threat to kill was made in the course of, or soon after, the commission of other very serious violent offences — namely intentionally causing serious injury in the case of Dickman and rape in the other cases — for which the offender was sentenced to a lengthy base sentence. The moderate sentences and orders for cumulation for the threat to kill charges in those cases must be seen in the context of the lengthy base sentences. In the present case, as the base sentence of 3 years and 3 months’ imprisonment for the blackmail charge was relatively modest, the sentence of 2 years’ imprisonment and the order for cumulation of 9 months were well within the sentencing range that was open to the judge for the threat to kill charge.
For the above reasons, the application for leave to appeal against sentence will be refused.
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