Anthony Devereaux v The Queen - [2019] VSCA 6

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSCA 6
Decision Date: 31 January 2019

CaseChat Overview and Summary

Anthony Devereaux appealed against his sentence in the High Court, challenging the severity of his punishment for blackmail, making threats to kill, and using a carriage service to harass. The charges stemmed from a series of 24 telephone conversations over 27 hours, prompted by the applicant's partner alleging sexual abuse by the victim when she was eight years old. The court had imposed a sentence of 3 years and 3 months for the blackmail charge, 2 years with 9 months cumulation for the making threats to kill charge, and 9 months for the harassment charge. Devereaux argued that the sentence for the threat to kill charge and the order for cumulation were manifestly excessive.

The primary legal issue before the court was whether the sentence and the cumulation order for the making threats to kill charge were manifestly excessive. Devereaux contended that the cumulative sentence did not align with the proportionality principle, which demands that the severity of the sentence should be commensurate with the gravity of the offence. The court examined the nature and circumstances of the offending, the principles of sentencing, and the appropriateness of the cumulative sentence in light of the overall offending.

The court found that the sentence and the order for cumulation were not manifestly excessive. The judges considered the totality of the offending, the emotional and psychological impact on the victim, and the need to deter similar conduct in the future. The court concluded that the sentence reflected the seriousness of the charges and the need to protect the community. Consequently, the application for leave to appeal was refused. The High Court upheld the original sentencing, finding no grounds for the appeal based on the proportionality and appropriateness of the sentence.

Orders