De Castres v The Queen
[2011] VSCA 377
•24 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0378
DURAN DE CASTRES Appellant and THE QUEEN Respondent S APCR 2010 0385 SHANNON KENT Appellant v THE QUEEN Respondent ---
JUDGES ASHLEY and HARPER JJA and ROSS AJA WHERE HELD MELBOURNE DATE OF HEARING 12 October 2011 DATE OF JUDGMENT 24 November 2011 MEDIUM NEUTRAL CITATION [2011] VSCA 377 JUDGMENT APPEALED FROM DPP v De Castres; DPP v Kent (Unreported, County Court of Victoria, Judge Tinney, 18 October 2010) ---
CRIMINAL LAW – Sentencing – Sentence Appeal – Prison assault – Whether a custodial or prison setting is an aggravating circumstance – Departing from a decision of a higher court.
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APPEARANCES: COUNSEL SOLICITORS For the Appellant De Castres
For the Appellant Kent
Mr S C Holt with
Mr P SmallwoodMr C B Boyce
Matthew White & Associates
Robert Stary Lawyers
For the Respondent Mr T Gyorffy Mr C Hyland, Solicitor for Public Prosecutions ASHLEY JA:
1 The fact that an offence of violence is committed in a custodial setting renders general deterrence of paramount importance as a sentencing consideration. In part, that is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety. In part, it is because the courts cannot permit the law of the jungle to take hold in prisons.
2 Particularly if the offender has a past history of violence, commission of an act of violence in a custodial setting will underline the importance of specific deterrence as a sentencing consideration.
3 In the presence of the two circumstances described, matters going in mitigation of sentence will be of lesser weight in the sentencing synthesis. The question in the particular case will be the extent to which the circumstances tending towards a heavier sentence operate. It is not a question, however, of there being a tariff for the particular offence if committed whilst in custody which is different and unrelated to the pattern of sentences generally for that offence.
4 Like Ross AJA, whose reasons I have had the opportunity of reading in draft, I see no reason to doubt that the judge correctly applied his findings as to the circumstances of the offence and the offender to the general propositions which I have stated. Like his Honour, also, I consider that the judge’s findings are unimpeachable.
5 As I understand it, counsel for De Castres submitted that the judge, impermissibly, must have treated the fact that the offence was committed in a prison as a circumstance which required the imposition of a sentence unrelated to the pattern of sentences generally for the offence; and then sentenced on such an impermissible basis. Those conclusions followed from the fact that the sentences passed upon his client and Kent were statistically very high.
6 I do not accept the submission. Once the judge concluded, for a number of
soundly based reasons, that this was a very serious instance of the offence, that fact, together with the antecedents of the appellants, made it inevitable that the sentence imposed on each appellant would be a heavy one.
HARPER JA:
7 I have had the benefit of reading, in draft, the reasons for judgment of Ashley JA and Ross AJA. I agree with their Honours that the appeals should be dismissed. I also agree with their reasons for coming to that conclusion.
8 There is in my opinion no doubt that the custodial setting is a relevant sentencing consideration in this case – as in most if not all cases of prisoner-on- prisoner assaults. At the same time, I agree with that which was said by McMurdo J in R v Ainsworth; Ex parte Attorney-General[1] to the effect that an offence when committed by a prisoner is not so unlike an assault on a citizen in the general community as to make an identified range of appropriate penalties in the latter case irrelevant to the former.
[1](2004) 1 Qd R 670, 682-683 [13] and [15].
9 It is nevertheless true that life in prison is very different from life outside; and that difference must be reflected in the courts' attitude to assaults by inmates on other inmates. Theirs are closed communities. In them, dislikes can quickly turn to hatred. Cliques will form. Gossip will be rife. Bullies will tend to thrive. Outbursts of anger, in the particular case unpredictable by prison staff, will occur and may quickly turn violent.
10 Violence, then, is much closer to the surface there than in the general community. If discipline is to be maintained – and, without it, prison life would be nasty, brutish and short – outbreaks of violence must be dealt with appropriately. Prison authorities will be assisted if it is known that the courts will in general regard deterrence as having a significance inside prison greater than that which it enjoys
outside: the word will get around, inside prison, in ways which cannot be replicated in the general community. Another consideration is that, if rules are not enforced, prisoners will tend to take advantage of a lack of discipline, thus compounding the resultant difficulties.
11 The counter to this is not harsh discipline. It is fair and predictable discipline. The courts must play their part in this. I too would therefore dismiss the appeals.
ROSS AJA:
Introduction
12 In August 2008 De Castres and Kent (the appellants) were inmates at Port Phillip Prison. At about 10:45am on 6 August 2008 the appellants jointly assaulted a fellow prisoner, using makeshift weapons. The victim, who was screaming out loudly, was chased around a garden bed and at one stage was squatting down while both men stood above him, stabbing down. Later De Castres was seen to restrain the victim from behind while Kent stabbed him. De Castres also stabbed the victim in the back whilst standing behind him.
13 Prison officers who had witnessed the attack ran to the area and demanded that the appellants drop their weapons, which they did. The weapons were a single blade from a pair of scissors and a sharpened metal spike with rubber bands wrapped around one end, forming a handle.
14 The victim was taken to Royal Melbourne Hospital where he was treated for numerous minor and superficial lacerations to his left upper back, right posterior thorax, left buttock, left thigh, left leg and upper left arm. He underwent an exploratory laparoscopy the following day and was then discharged.
15 On 4 October 2010 the appellants pleaded guilty in the County Court to one count of intentionally causing injury. The plea for both men was heard on the same date and they were sentenced on 18 October 2010. The appellants were each
sentenced to four years and nine months imprisonment, three years of which was directed to be served cumulatively on sentences they were then undergoing. A new single non-parole period of three years and six months was fixed in respect of De Castres,[2] and two years and nine months in respect of Kent.[3]
[2]DPP v De Castres & Kent (Unreported, County Court of Victoria, Judge Tinney, 18 October 2010) (‘Reasons for Sentence’) [68]-[71].
[3]Ibid [75]-[76].
16 On 27 May 2011 Redlich JA granted leave to appeal on a narrow basis only, namely that the sentencing judge had erred in proceeding on the assumption that assault occurring in a custodial setting should generally be treated as an aggravating circumstance. Alternatively, even if that general approach is correct, in the particular circumstances the sentencing judge was in error in treating it as an aggravating circumstance. The appellants were not granted leave to appeal on the basis that their sentences were manifestly excessive.
17 I propose to deal first with his Honour’s reasons for sentence before turning to the submissions advanced in the appeals.
18 In sentencing the appellants his Honour had regard to the following matters:
(i) The offence of intentionally causing injury is punishable by a maximum term of imprisonment of 10 years.[4]
[4]Ibid [1] and [63].
(ii) The nature of the offending and the injuries sustained by the victim.[5] His Honour characterised the offence as a ‘brutal and planned joint attack’ where knives were employed, ‘all in a prison setting’.[6] His Honour found that the attack was ‘a sustained one and must have engendered a level of fear’.[7] No victim impact statement was provided and his Honour was not able to make any conclusions as to there being any long term impact upon the victim.[8]
[5]Ibid [3]–[9].
[6]Ibid [33].
[7]Ibid [9].
[8]Ibid.
(iii) The personal background of the appellants.[9] His Honour had regard to Kent’s disadvantaged background[10] and to the fact that De Castres had Tourette’s syndrome and as a consequence a given sentence would weigh more heavily upon him than it would a person in normal health.[11]
[9]Ibid [11]-[23] (De Castres) and [24]-[35] (Kent).
[10]Ibid [28].
[11]Ibid [46].
(iv) Both appellants had an extensive prior history. De Castres had over 90 prior offences including, relevantly, convictions for assault, armed robbery, recklessly causing serious injury, intentionally causing injury and intentionally causing serious injury.[12] Kent also had an extensive criminal history with over 100 priors including convictions for intentionally causing injury, assault by kicking, assault with a weapon and intentionally causing serious injury.[13] His Honour noted that each of the appellants had been provided with numerous opportunities from courts over the years, which they had not taken, and had continued to offend despite the sentences imposed upon them.[14] In each case his Honour found that the prospects for rehabilitation were ‘dim’[15] and that each of the appellants posed a serious risk of reoffending.[16]
[12]Ibid [16].
[13]Ibid [29].
[14]Ibid [17] and [30].
[15]Ibid [16] and [32].
[16]Ibid [37].
(v) Nature and gravity of the offending. In sentencing the appellants his Honour made it clear that, in all the circumstances, he regarded the offending as ‘a very serious example of intentionally causing injury’ (at [44]).[17] In a passage which is at the centre of this appeal his Honour expounds on why he regarded the offending as particularly serious:
[17]Ibid [44].
… It has features which in my assessment justify placing it in the highest category of seriousness for this offence … It was a cowardly, relentless and pre-planned joint armed attack in a custodial setting, upon a victim who was both powerless, both by weight of your number and by his status as a prisoner. It is a crime deserving of stern punishment. Your victim was voiceless and powerless. The need for general deterrence is clearly extremely high, and specific deterrence is a very significant factor given the chronology that I have referred to. The setting cannot be ignored. It is a fact highly relevant to my task. See R v Byron & Earley (1992) 64 A Crim R 140, where the Chief Justice of South Australia had the following to say:
‘Crimes committed in prison against a fellow prisoner are notoriously difficult to prove due to difficulties in obtaining witnesses who are willing to depose to what occurred. For that reason alone, the Courts must impose severe deterrent penalties in the cases which can be proved. Moreover prisoners are entitled to look to the Courts for protection against violence from their fellow prisoners. They are necessarily in a vulnerable position by reason of the very circumstances of being confined in prison. The circumstances under which they are confined deprive them to a great extent of the opportunity of taking prudent measures for their own safety and protection …’ And later in the judgment his Honour went on: ‘It seems to me that the need to impose deterrent penalties for offences of that kind must be paramount …’ And he concluded by saying ‘… to provide the necessary deterrence both to the respondents themselves and to other prisoners who might be tempted to perpetrate violence upon their fellow prisoners.’
… A joint attack with weapons in this prison setting is a quite rare event, at least to find its way before the courts. As I have indicated the need for general deterrence is, in my mind, paramount in the circumstances, to deter other like-minded individuals from taking the law into their own hands in a prison setting.[18]
[18]Ibid [64] and [66].
(vi) The guilty pleas and delay. The offences were committed on 6 August 2008 yet the appellants were not charged until 1 May 2009. The delay was not explained and his Honour took it into account in mitigation. The pleas followed a contested committal on 16 November 2009 and were offered on 30 September 2010. Despite the lateness of the pleas his Honour gave each appellant a benefit for their plea and made it clear that the sentence he was imposing was less than would otherwise have been the case.[19]
[19]Ibid [40].
(vii) The appellants’ youth. De Castres was almost 22 years old at the time of the offence and was 24 years old when sentenced. Kent was 22 at the time of the offending and 24 years of age when sentenced. At [47] his Honour said:
Each of the pleas focused on your relative youth, and the importance of that fact in this case. You are both still young men, but are not young offenders as that term is defined in the Act. However, though still youthful, given the nature, the extent of your prior histories and the seriousness of this particular offence itself, the principles to be distilled from those authorities dealing with youth, including Mills’ case,[20] do not have any great application to either of you, given the conclusions that I have reached as to your dim prospects of rehabilitation.
(viii) The principle of totality.[21]
[20]R v Mills [1998] 4 VR 235.
[21]Reasons for Sentence [48]-[53].
19 At the heart of each of the appeals is a narrow point. It is contended that his Honour erred by treating the bare fact that the offence occurred in a prison setting as requiring a higher sentence than if the offence had been committed in the community. In support of this contention the appellants rely on the decision of the Queensland Court of Appeal in R v Ainsworth; Ex parte Attorney-General.[22]
[22](2004) 1 Qd R 679 (‘Ainsworth’).
20 Counsel for the appellants accept that the custodial setting was a relevant factor but submit that the weight to be attributed to that fact is dependent upon the particular circumstances. In this case it is submitted that the offence was not committed surreptitiously; rather it was in broad daylight in an open area of the prison under the observation of prison staff. Hence it cannot be said that there was any difficulty in establishing the identify of the assailants. Further, it is submitted that his Honour’s conclusion that the victim was a vulnerable person by reason of his status as a prisoner was not reasonably open on the evidence. It is on this basis that it is submitted that his Honour erred in treating the custodial setting of the offence as an aggravating feature. It is submitted that the sentencing discretion miscarried and the appellants should be re-sentenced to a lesser penalty.
21 I am not persuaded that his Honour has erred in the manner contended by the appellants. It is convenient to begin with a consideration of the judgments in Ainsworth and R v Byron & Earley.[23]
[23](1992) 64 A Crim R 140 (‘Byron & Earley’).
22 Ainsworth concerned an assault in a custodial setting. The respondents, Ainsworth, Davis, Kirkby and Uttenbosch, pleaded guilty to charges of assault occasioning bodily harm (with circumstances of aggravation) and were sentenced to three years’ imprisonment to be served cumulatively with the terms of imprisonment they were already serving. The Attorney-General appealed against each respondent’s head sentence submitting that those who received three year terms should have been sentenced within a range of six to eight years. The principal argument advanced on behalf of the Attorney was that the sentencing judge was wrong to regard sentences for this offence when committed outside prison as providing any useful yardstick. The offence of assault occasioning bodily harm, committed in prison, was said to require a much heavier penalty than indicated by sentences for that offence in other cases.
23 McMurdo J, with whom Davies JA and Jones J agreed, rejected the Attorney’s contention:[24]
The Attorney's submission would require a firewall to be put in place between offences of violence in prison and offences of violence of an apparently similar kind committed against people in the general community.
…
The relevance of the offence being committed by a prisoner is uncontroversial but its particular impact upon the sentencing of an offender will vary from case to case according to the impact of the other facts and circumstances of each case. But I do not regard this offence when committed by a prisoner as being so unlike any assault on a citizen in the general community as to make irrelevant an identified range of appropriate penalties in that broader context. I am not persuaded that the need to deter, or any other relevant purpose of sentencing, can be served only by the creation of a distinct and higher range as the appellant argues.
[24]Ainsworth 682-683 [13] and [15].
24 Ainsworth does not assist the appellants, for two reasons.
25 First, his Honour did not place these offences into a separate category of offences based on the custodial setting such that they were to be sentenced on the basis of a distinct and higher sentencing range. The setting in which the offending occurred was a feature (albeit a highly relevant one) to which his Honour had regard. The other features which led his Honour to place the offending in ‘the highest category of seriousness for this offence’ were that the offence was: a cowardly; relentless; pre-planned; armed; joint attack against a victim who was powerless – both by weight of numbers and by his status as a prisoner. It is apparent that his Honour was categorising the seriousness of the offending – having regard to all the circumstances – within the broader context of the various categories of seriousness for this offence. He was not assessing these offences solely by reference to other offending within a custodial setting.
26 Second, Ainsworth is authority for the proposition that where offending occurs in a custodial setting that fact is a relevant consideration. As McMurdo J says:[25]
[25]Ibid 682.
A sentencing judge is required to appreciate the high importance of deterring prison violence such as this, whether or not it involves anything which the offender would see as justification. The sentencing judge here did recognise these matters, saying that::
‘I need hardly say that attempts by prisoners to take the law into their own hands are not to be tolerated and require deterrent punishment.’
The fact that these offences were committed by prisoners upon another and then defenceless prisoner was obviously an important consideration in the balancing of all relevant considerations in the exercise of the sentencing discretion.
27 The approach adopted by the sentencing judge here was consistent with the approach posited by McMurdo J in Ainsworth. Further, properly understood, Ainsworth is consistent with the approach taken by the South Australian Court of Criminal Appeal in Byron & Earley.
28 Byron & Earley involved an attack by the two respondents on a fellow prisoner. Both respondents had been convicted of wounding with intent to do grievous bodily harm and sentenced to five years’ imprisonment. The offending was described by King CJ as ‘a savage attack and beating with a piece of wood and it resulted in injuries to the victim, including six stab wounds’.[26]
[26]Byron & Earley 141.
29 At the time of the offence the respondents were each serving a sentence of life imprisonment for murder. Byron was subject to a non-parole period of 33 years and Earley was subject to a non-parole period of 18 years. The sentencing judge had ordered that the sentences be served cumulatively upon the life sentences already being served by the respondents. On appeal the Court held that any sentence said to commence upon the expiry of a life sentence was ‘without meaning’ and did not have the effect of imposing any additional punishment. Additional punishment could only be imposed by extending the non-parole period.
30 In extending the existing parole period of both respondents by four years King CJ, with whom Cox and Matheson JJ agreed, observed: [27]
The circumstances of the crime are serious. It is the type of crime which calls for severe deterrent punishment.
Crimes committed in prison against a fellow prisoner are notoriously difficult to prove due to difficulties in obtaining witnesses who are willing to depose to what occurred. For that reason alone the courts must impose severe and deterrent penalties in the cases which can be proved. Moreover, prisoners are entitled to look to the courts for protection against violence from their fellow prisoners. They are necessarily in a vulnerable position by reason of the very circumstances of being confined in the prison. The circumstances under which they are confined deprive them to a great extent of the opportunity of taking prudent measures for their own safety and protection. They must depend entirely or very largely upon authority to protect them from violence.
…
It seems to me that the need to impose deterrent penalties for offences of this kind must be paramount and must take priority over the considerations that were put by [counsel for the appellant]. I think that the need to protect prisoners from violence by fellow prisoners requires a substantial extension of the existing non-parole period in the case of both respondents in order to provide the necessary deterrence both to the respondents in order to provide the necessary deterrence both to the respondents themselves and to other prisoners who might be tempted to perpetrate violence upon their fellow prisoners.
[27]Ibid 143.
31 It is apparent from his Honour’s remarks that he regarded deterrence as the paramount sentencing consideration in order to deter both the respondents themselves and ‘other prisoners who might be tempted to perpetrate violence upon their fellow prisoners’. The policy basis advanced by his Honour in support of the imposition of severe and deterrent penalties in such cases was as follows:
Ø Crimes committed in prison against a fellow prisoner are notoriously difficult to prove due to difficulties in obtaining witnesses who are willing to depose to what occurred; and
Ø Prisoners are entitled to look to the courts for protection against violence from their fellow prisoners. They are necessarily in a vulnerable position by reason of being confined in a prison – the circumstances under which they are confined deprive them to a great extent of the opportunity of taking prudent measures for their own safety and protection. They must depend entirely or very largely upon authority to protect them from violence.
32 Similar sentiments have been expressed in judgments of this Court which have emphasised the need to impose sentences with the objective of deterring offending in prison.
33 In R v Allen & Jackson,[28] the Victorian Court of Criminal Appeal considered an appeal by two prisoners convicted of the blackmail of a remand prisoner, who was by reason of his race and the offence for which he was remanded properly described as a vulnerable person.[29] The Court concluded that a remand prisoner was entitled to ‘be protected from thuggery and extortion just as much, if not more so, than an ordinary citizen’ and that ‘prisoners in gaol must be deterred from the commission of further offences and making gaols places of incarceration not [places of] peril’.[30]
[28](1994) 77 A Crim R 99 (Allen & Jackson).
[29]Ibid 120 (Nathan J, with whom Southwell and McDonald JJ agreed).
[30]Ibid.
34 Similarly, in R v Devries, Vincent JA observed: [31]
Persons incarcerated in our gaols are by reason of the circumstances of their confinement required to live in close proximity to each other, often for lengthy periods, and often in situations of some difficulty. For a myriad of reasons, including the development of understandable frustrations and stresses, as well as the circumstance that a significant percentage of those imprisoned at any one time are likely to be of a violent disposition or emotionally labile, tensions will arise and the risk of violence is ever present.
Notwithstanding those realities, it is no part of a sentence of imprisonment that the individual subject to it is to be required to live in fear or be subject to violent physical attack. Whatever interpersonal problems might arise, there can never be any justification for the use of violence against a fellow prisoner on the basis that he has offended in some way against prison culture by seeking the assistance of the authorities in the resolution of a problem that has arisen or in order to secure his own safety.
It hardly needs to be said that our prisons must not become jungles with their own subculture in which predators can enforce their will in the confidence that those who are subject to it will be too fearful to do anything about it or in which the only practical response is to take equally violent retaliatory measures. I note that this concern was appreciated by the sentencing judge. Neither can it be accepted that there is a separate gaol culture that somehow mitigates the employment of force as a method of settling disputes.
Obviously the courts must play their part in endeavouring to ensure that no such situation develops and through the sentences that are handed down discourage the use of force in this way. In other words, it must be crystal clear to all concerned that the conduct of the kind in which the applicant engaged will not be tolerated and will almost certainly attract the imposition of condign punishment. Nor in the present matter can the applicant's appalling history of violence be disregarded.
[31][2005] VSCA 95 [20]-[23] (‘Devries’) (emphasis added).
35 His Honour’s remarks were subsequently endorsed by the Court in R v Berry & Wenitong, in which Redlich JA, with whom Buchanan and Kellam JJA agreed, said: [32]
Neither applicant had demonstrated any remorse for their conduct. It occurred within the setting of a prison. In sentencing for crimes of serious violence committed within the prison system, Vincent JA in R v Steven Devries was to emphasise ‘that prisons must not become jungles within their own subculture’ and ‘that it is not part of the sentence of imprisonment that the individual subject to it is to be required to live in fear or to be subject to violent physical attack’. Her Honour made appropriate reference to the particular importance of the imposition of a sentence which would discourage prisoners from inflicting violence upon their fellow inmates. In my view, the circumstances warranted the imposition of a heavy sentence. The sentence imposed was reasonably open to the sentencing judge. The contention that the sentence was manifestly excessive should be rejected.
[32][2007] VSCA 202 [126].
36 In my view, these authorities support the proposition that deterrence assumes particular importance as a sentencing principle where the offending takes place in a custodial or prison setting. Hence the custodial or prison setting of an offence may be regarded as an aggravating feature. It follows that I reject the appellants’ contention as to the state of the law.
37 The appellants submit in the alternative that if the state of the law is as I have stated then the law is wrong and that the assessment of whether an offence occurring in a prison is aggravated depends on an analysis of the circumstances pertaining to that offence, not merely the location in which it occurred. This argument proceeds on the following basis.
38 The circumstances of the offending in prison which were considered in Byron & Earley and in Allen & Jackson included:
(i) The difficulties of proving offences alleged to have been committed in custody;
(ii) The need to protect prisoners from violence or threats;
(iii) The vulnerable status of prisoners generally and in specific instances, including the impediments to them accessing effective measures for their protection; and
(iv) Deterring other prisoners from committing further offences in prison/perpetrating violence on other prisoners.
39 The appellants’ submit that of these factors, the second and fourth apply equally to offences of violence committed in custody and those committed outside, whether in a public place or private setting. Only the first and third factors are said to have an area of application that is outside the usual or typical range of circumstances which apply to most offences of violence. It is submitted that some of the more prevalent offences of violence (such as many domestic violence cases) share the features of a vulnerable victim and difficulty of detection and proof.
40 On this basis it is submitted that in order to determine if an offence in custody is an aggravated one, attention should focus on the circumstances by reference to the issues of difficulty of proof and a proper assessment of the status of the victim.
41 The appellants submit that in this case the offence was not committed surreptitiously; rather it was in broad daylight in an open area of the prison and swiftly observed by prison staff and hence this case was not one in which there could really be said to be any difficulty in establishing the identity of the assailants, notwithstanding the lack of co-operation of the victim.
42 As to the proper assessment of the status of the victim it is submitted that his Honour’s conclusion that the victim was a vulnerable person by reason of his status as a prisoner was not reasonably open on the evidence.[33] In this regard it is submitted that the victim was an older and larger man with a long history of violent offending,[34] and while he was to an extent ‘powerless’ at the time of the actual assault, but was able to call for assistance of staff who promptly intervened.
[33]Reasons for Sentence [39] and [64]. See eg ‘Your victim was voiceless and powerless’.
[34]Plea p 25 line 27 – p 26 line 3 and p 51 lines 1-4.
43 The sentencing judge had concluded that the victim’s refusal to identify his assailants and his evidence at court (in which he stated that the two accused were not involved in the offence) indicated the powerlessness and vulnerability of such a person when a victim of an offence in custody.[35] The appellants submit that this inference was not open to his Honour. It was argued that there are numerous possibilities as to why the victim might not wish to co-operate, for example, a general attitude of antagonism towards police and prosecutors; a desire to deal with the matter himself; an acknowledgement that the appellants had a legitimate grievance against him, whether because the matters asserted by defence counsel on the plea (and rejected by his Honour) were true or otherwise. On this basis it is said that the conclusion that the victim was vulnerable by reason of his status as a prisoner was merely speculative.[36]
[35]Reasons for Sentence [39].
[36]Reasons for Sentence [42] and [43].
44 In dealing with the submissions advanced on behalf of the appellants it is convenient to deal with the last point first.
45 In his reasons for sentence his Honour said:[37]
[The victim] has given evidence (of sorts) in the Magistrates’ Court. His attitude when choosing not to identify his assailants in his statement and in his evidence at Court marks out to me the powerlessness and vulnerability of such a person when that person is a victim of an attack occurring in a custodial setting.
…
An explanation for your offending was proffered in the course of each of the pleas conducted before me. The explanation was without any evidentiary basis; a point that I made clear in the course of the submissions made to me. There is no interview in the material from which I can reach any conclusions. The attack was explained, it was said, because [the victim] was an older person said to have a lengthier history. It was submitted that he had been standing over each of you. It was submitted that you were each concerned for your welfare, and in a prison setting it was not realistic, or so it was argued, to expect that you would take alternative measures such as alerting the authorities. It was alleged that you were being ‘heavied’, as the term was employed, by [the victim], for money in the canteen. It was submitted that reporting it to the authorities was out of the question, and that the offending was to that extent explicable.
There is no material upon which I can reach any conclusion as to the reason behind this attack. Neither of you has made an interview with the police providing this version, the version is placed before me without any evidentiary support and is questioned by the prosecution. In the circumstances, I am unable to accept that this is the explanation for the offending. In a way, it might be academic. Clearly enough, there is or was some basis of hostility between the three of you, causing two of you to attack the lone and unarmed [victim]. To that extent it was never suggested that the proffered explanation would or could be mitigatory, but rather explanatory. In any event, the ‘law of the jungle’ cannot be countenanced in any way by this or any Court.
[37]Ibid [39] and [42]-[43].
46 I am not persuaded that his Honour erred in inferring from the victim’s refusal to identify his assailants, and his evidence at court, that the victim was powerless and vulnerable. It is important to note in this context that, on oath, the victim stated that the appellants were not involved in the offence – this is despite the fact that the offending took place in an open setting within the prison and was witnessed by others. Further, the scenario advanced by defence counsel on the plea was without any evidentiary support.
47 As to the appellants’ general argument, I readily accept that the particular circumstances in each case are important considerations. In the prison context some victims may be vulnerable to a greater or lesser extent than others. But the fact is that simply being in a prison setting is likely to increase a victim’s vulnerability because they are deprived to great extent of the opportunity of taking prudent measures for their own safety.
48 Further, the submissions advanced on behalf of the appellants ignore the emphasis given to general deterrence in relation to offending in a custodial setting. As Vincent JA observed in Devries, our prisons must not become jungles with their own subculture and courts must play their part by handing down sentences to discourage such offending.
49 At paragraph 14 of the written case for the appellant Kent it is submitted that if the state of the law is that the custodial setting of an offence is an aggravating feature, then the law is wrong. To the extent that this submission is asking the court to depart from the statements of principle in the authorities to which I have referred, I would reject it.
50 As a general rule, this court will not depart from its own earlier decisions unless those decisions are considered to be clearly, or plainly, wrong. As the High Court said in Nguyen v Nguyen:[38]
Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong.
[38](1990) 169 CLR 245, 268-269 (Dawson, Toohey and McHugh JJ). Also see Farrar v Western Metropolitan College of TAFE [1999] 1 VR 224, 228-229, [13]-[14] (Charles JA with whom Winneke P and Batt JA agreed); RJE v Secretary to the Department of Justice (2008) 21 VR 526, 540 [48] (Maxwell P and Weinberg JA with whom Nettle JA agreed).
51 I am not persuaded that the judgments of this court in Allen & Jackson and Devries are clearly or plainly wrong. Indeed, with respect, they are plainly right.
52 Comity between intermediate appellate courts is also a consideration.[39]
[39]See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-152, [135].
53 For the reasons given I would dismiss the appeals.
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