Devine v Tasmania
[2015] TASCCA 19
•26 August 2015
[2015] TASCCA 19
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Devine v Tasmania [2015] TASCCA 19
PARTIES: DEVINE, Ricky Albert
v
STATE OF TASMANIA
FILE NO: 161/2015
DELIVERED ON: 26 August 2015
DELIVERED AT: Hobart
HEARING DATE: 17 August 2015
JUDGMENT OF: Tennent, Porter and Pearce JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Serious offences of violence involving use of a knife by repeat offender – Sentence of seven years' imprisonment with no order for parole but two years' probation on release – No challenge to head sentence – Sentence not manifestly excessive by reason of there being no parole order.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G Barns
Respondent: D Coates SC
Solicitors:
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASCCA 19
Number of paragraphs: 37
Serial No 19/2015
File No 161/2015
RICKY ALBERT DEVINE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
PORTER J
PEARCE J
26 August 2015
Order of the Court
Appeal dismissed
Serial No 19/2015
File No 161/2015
RICKY ALBERT DEVINE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
26 August 2015
On 1 November 2013, the appellant, Ricky Albert Devine, was sentenced on his plea of guilty in respect of a number of offences. These were:
· one count of aggravated burglary,
· two counts of committing an unlawful act intended to cause bodily harm,
· three breaches of a family violence order,
· one count of motor vehicle stealing, and
· one count of destroy property.
All of the charges arose out of events which occurred at the home of his former partner, Jodie Perone, on the morning of 21 July 2013.
The appellant's relationship with Ms Perone had ended in November 2012. She subsequently moved to the north of the State because the appellant had threatened to cut her throat and burn her house down. On 14 February 2013, her house was burnt down, although no one has been charged in relation to that fire. Ms Perone moved back to Hobart. Ms Perone then entered into a relationship with Mr Damon Waller, who was known to the appellant. The appellant was not happy about this new relationship, and made threats to harm Mr Waller. Ms Perone sought a family violence order, and, on 3 May 2013, that was served on the appellant. He was required not to approach Ms Perone at all.
On the morning of 21 July 2013, Ms Perone and Mr Waller were at their home at Glenorchy. The appellant arrived and began kicking the front door. He then smashed a window beside the door. The appellant was yelling and screaming. A period of silence followed and Ms Perone thought the appellant had gone. She opened the door and found him standing there. He produced a long knife and threatened to kill her. The appellant lunged at Ms Perone with the knife. She tried to grab it and suffered a cut to her right hand. Mr Waller grabbed a small steak knife and ran to help. When he arrived at the door, the appellant was holding Ms Perone by the throat with the knife up at her throat. The appellant said words to the effect, "Why shouldn't I kill him".
Mr Waller tried to get in between the appellant and Ms Perone. He grabbed the blade of the knife. The appellant pulled it away and then drove the knife into the right side of Mr Waller's stomach. The appellant tried to stab Mr Waller again. Mr Waller fell to the ground. Part of his intestine appeared to be hanging out. The appellant continued yelling, and, holding the knife to Ms Perone's throat, demanded she leave with him. She agreed in an effort to get him away. As the appellant went out the front door he grabbed the keys to Mr Waller's car. Ms Perone managed to push him out the door and close it. She then began screaming for help. The appellant drove off in Mr Waller's car.
The appellant was arrested later that day, still in possession of the car. He appeared to be intoxicated and affected by drugs. The appellant subsequently pleaded guilty to the offending identified above and, on 1 November 2013, was sentenced to serve a period of seven years' imprisonment with no non-parole period. An order was made that he be subject to probation on release.
The appellant has appealed the sentence on the sole ground it is manifestly excessive. The appeal was filed well out of time and the appellant applied for an extension of time within which the appeal could be filed. The respondent did not oppose an order to that effect being made. At the hearing of the appeal, the appellant did not suggest that the head sentence of seven years was excessive. The submissions were confined to the impact of the absence of a non-parole period.
To succeed on this appeal, the appellant must establish clear error. Particularly relevant on this appeal are the appellant's prior offending history, the appellant's mental health issues and the sentencing comments of the learned sentencing judge in relation to those issues and generally. I will deal with each of those matters
The appellant's offending history
The appellant was born on 3 December 1960 and began offending as a child. The first term of imprisonment imposed, albeit wholly suspended, was in March 1978. The first term of actual imprisonment was imposed in February 1979, followed by a further one in March 1979. The appellant breached the original suspended sentence and was also ordered to serve that. Terms of imprisonment were frequently imposed for dishonesty offences. The appellant was released on parole on 18 March 1980 and was back in gaol a few months later. On 26 June 1981, the appellant was sentenced for his first crimes of violence, predominantly three Criminal Code assaults. He was gaoled.
The appellant was sentenced for the offence of assaulting a police officer on 3 November 1982 (two counts), 29 November 1982 (one count) and 16 May 1983 (one count). There were convictions for Criminal Code assaults on 6 December 1982 and 28 July 1983. I will not detail every other conviction for violent offending in the appellant's record. Suffice to say he continued to assault police and people generally, and continued to be imprisoned.
On 28 April 1993 the appellant was imprisoned for two years for wounding. The victim of that attack was the appellant's then estranged wife. He went to her home in breach of a restraint order and a bail order. He had a knife and she was wounded during a struggle with him. The sentencing judge on that occasion said about parole:
"The nature and circumstances of the crime and the antecedents of the accused each provide strong reason to order that the accused not be eligible for parole at all. Nevertheless I am not persuaded that I should go that far, but I do consider that an order under that subsection is appropriate."
His Honour ordered a non-parole period of 18 months.
In July that year, a further 15 months' imprisonment was imposed for three counts of assault. The victim of those assaults was the appellant's estranged wife. The appellant threatened her with a knife and threatened to kill her.
The appellant was released on parole on 17 July 1995. While other offending followed, offences of violence were not particularly prevalent between then and 2002. On 31 January 2003, the appellant was convicted of an assault committed in July 2002 and sentenced to a term of imprisonment. On 4 August the same year he was dealt with for breaching restraint orders. On 7 August 2003, the appellant was gaoled again for an assault.
On 31 March 2004, the appellant was gaoled for three years and nine months with a non-parole period of three years for violent offending. That offending involved the appellant attacking a former partner and her father. He had previously assaulted the same partner. He did so because he was unhappy she had ended their relationship. That attack involved the use of a knife. The sentencing judge said at the time of that sentence:
"Although there are some matters that count in his favour, his appalling record compels me to impose a substantial sentence with a long non-parole period."
The appellant was released from prison towards the end of 2007. He appears to have largely kept out of trouble for about three years. He was gaoled again on 16 April 2012 in respect of an aggravated burglary and stealing which had occurred in December 2010, and a number of other offences. He was gaoled for breaching family violence orders on 19 December 2012, having been placed on a good behaviour bond for similar offending in June 2012. He was gaoled on 15 April 2013 for breaching a family violence order. The offending which resulted in his current term of imprisonment occurred just over three months later.
What is apparent from that summary is that the appellant has a bad record over many years for committing offences of violence. When given the benefit of suspended sentences, bonds and parole, he has breached them. He also has an extremely poor record for committing crimes of violence against former partners. The offending he is now in custody for was the third such set of serious crimes. In between, there have been convictions for assault in respect of the same partners and breaches of restraining orders in respect of them.
The appellant's mental health issues
A report from a psychologist was tendered to the learned sentencing judge. It had been prepared by a prison psychologist after the appellant's mother had expressed concerns about his mental health, secondary to significant substance use in the community. The appellant was assessed in August 2013. The psychologist noted a significant speech impairment which she suspected was a consequence of a prolonged history of substance abuse, and subsequent likely acquired brain injury. The appellant's general intellectual functioning was found to be extremely low to borderline and it was indicated he could be considered to have a mild intellectual disability. However, the psychologist's view was that this state of affairs was most likely due to substance abuse.
The psychologist made a number of recommendations. These included:
· that the appellant cease all further substance abuse and take care to avoid head trauma;
· that the appellant participate in drug and alcohol programs;
· that the appellant have speech therapy;
· that the appellant be reviewed regularly to monitor any deterioration in his functioning; and
· that he be referred to bodies such as Headway on release.
There was nothing in the report which suggested that any of the recommendations might reduce the appellant's risk of recidivism on release. All the recommendations were designed to assist the appellant with managing the deterioration which had already occurred in his functioning, and ensuring it did not get worse.
The sentencing remarks of the learned sentencing judge
His Honour's remarks were detailed. They dealt with the circumstances of the crime, the appellant's offending history and the psychologist's report. His Honour said at 3 of his comments about that report:
"His counsel suggested that, as a result of the psychologist's recent assessment, there was a likelihood of rehabilitation before Mr Devine's release from prison. However, I see no reason to be optimistic about that. Sometimes when an offender has a low intellectual capacity, it is appropriate to treat that as a very significant mitigating factor. In Mr Devine's case, however, I think it is very significant that he seems not to learn from his mistakes. To put it another way, his past prison sentences do not seem to have achieved anything by way of personal deterrence. He might lose interest in Ms Perone and Mr Waller, but I think it is very likely that, one way or another, he will re-offend in a serious way after his release from prison."
The conclusion expressed by the learned sentencing judge at the end of the quote above was not really challenged on this appeal.
His Honour also specifically dealt with the issue of parole after making the comments set out above. He said:
"I think I should impose a long prison sentence in order to protect the public from Mr Devine, and in order to deter others from this sort of conduct. Because of Mr Devine's very bad record, I will not make any provision for parole. I am conscious that parole normally serves a very valuable purpose, enabling offenders to rejoin the community under supervision, knowing that their release is conditional upon them obeying the law and their parole conditions. In Mr Devine's case I think it is more appropriate for me to make a probation order so that he will have the assistance and supervision of a probation officer after he has served his sentence."
Submissions by counsel for the appellant
Counsel quoted remarks by Wood J in Young v Wilson [2015] TASSC 16 at [51]-[53]. Her Honour was there dealing with the impact of parole considerations when dealing with a question of whether or not to activate a suspended sentence. Before dealing with the particular issue the subject of that decision, her Honour considered the issue of parole generally. Her Honour said, commencing at [48]:
"48 Before turning to consider the sentencing orders under review, I pause to reflect on general principles applicable to the court's discretion in fixing a non-parole period. The purpose of such orders is to give a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom. The question of how long the non-parole period should be is a question for the sentencing judge. According to well-established principle, the non-parole period should be: 'the minimum period the judge determines that justice requires the prisoner must serve, having regard to all the circumstances of the offence': Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629; Deakin v The Queen [1984] HCA 31; (1984) 11 A Crim R 88. See Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10], per Blow CJ, for the application of this principle to the legislation under consideration.
49 Section 17(4) of the Sentencing Act provides the court with guidance in exercising its discretion with respect to parole eligibility:
'(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:
(a) the nature and circumstances of the offence;
(b) the offender's antecedents or character;
(c) any other sentence to which the offender is subject.'
50 Relevant here is 'any other sentence to which the offender is subject'.
51 In Gill v The Queen [1990] TASSC 37, Crawford J, with whom Neasey J agreed, spoke of the effects of not making an order that a defendant be eligible for parole at the earliest possible time, and said at 7-8:
'The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by sentencing judges before making an order removing eligibility for parole or extending the non-parole period.'
52 In Devine v The Queen, Evans J at [30] gave the following guidance in relation to fixing a non-parole period:
'Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters details in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public.'
53 In Barrett v Wilson [2015] TASSC 3 at [22], Pearce J expressed approval of those remarks. I also agree with that approach, at least as a starting point."
Counsel then submitted that the learned sentencing judge in the present case had failed to give weight to the considerations articulated in Gill and Devine when exercising his discretion in relation to the non-parole period. His Honour, it was submitted, failed to take into account in particular the capacity of a non-parole period to provide an incentive to rehabilitation. Counsel submitted his Honour had before him the psychologist's report that outlined "a pathway to rehabilitation that had not been available in previous terms of imprisonment".
In his written submissions counsel also referred to the circumstances of the appellant as a person living with a mild intellectual disability and an acquired brain injury which meant he was not a suitable case for the pursuit of general deterrence. He referred to Startup v State of Tasmania [2010] TASCCA 5 and R v Verdins (2007) 15 VR 269. No oral submission was directed to this issue.
Discussion
As I said earlier, to succeed on this appeal, the appellant has to demonstrate clear error on the part of the learned sentencing judge. The sole basis for this appeal appears to be that his Honour did not give appropriate weight to the purpose of non-parole periods, and that, by failing to make such an order, he had deprived the appellant of an incentive to rehabilitate himself.
In principle, I do not cavil with the statements relating to the purpose of non-parole periods. However, it cannot flow from those that, in every case, an offender is entitled as of right to a parole order, and if he or she does not have it, they may argue that their chances of rehabilitation will be adversely affected and hence an error has been made. The Sentencing Act 1997 specifically provides for circumstances where no parole order is made, and requires a sentencing judge to give reasons if he or she does not make an order. There is no suggestion in this case that the learned sentencing judge did not give reasons for not making a parole order.
The issue of parole is a matter for the discretion of the sentencing judge. He or she is entitled to take into account the circumstances of the particular case. His Honour, in this case, clearly did, and there is no suggestion he made any error in so doing. His Honour was dealing with an offender with an appalling history for offences involving violence who had been offered numerous opportunities to rehabilitate himself in the past. He had not learned anything. Further, the appellant had demonstrated a pattern of using extreme violence against former partners and whoever was close to them. His Honour clearly determined that a lengthy term of imprisonment which was required to be wholly served was the only way to address the appellant's offending.
Counsel suggested that the psychologist's report referred to provided a pathway to rehabilitation. In my view, it did no such thing. It simply identified the problems the appellant had, their likely cause, and provided means to deal with those while the appellant was in prison and upon release. There was nothing to suggest the recommendations made would necessarily reduce or eliminate the risk of the appellant re-offending in the way that he clearly demonstrated he had in the past.
I would dismiss the appeal.
File No 161/2015
RICKY ALBERT DEVINE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
26 August 2015
I agree with the reasons for judgment of Tennent J and would dismiss the appeal.
The question in this case is whether the fact that the appellant was not given any eligibility for parole makes the sentence manifestly excessive. As to parole eligibility, it is convenient to repeat what I said in Groenewege v Tasmania [2013] TASCCA 7 at [56]-[57]:
"Under the Sentencing Act 1997 s17, there is no parole eligibility unless it ordered that the offender is not eligible for parole before the expiration of a specified period. That period must be not less than one half of the head sentence. A non-parole period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances. The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R (1974) 131 CLR 623 at 629; Carr v R (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47].
57 Obviously, whether a non-parole period is appropriate has to be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the length of the head sentence."
The sentencing judge obviously took the view that the period of seven years, set as the appropriate sentence, was the minimum period of imprisonment called for by the circumstances of the offences, and of the offender. He determined that there should be no eligibility for any relevant part of the sentence to be served in the community. Because of the appellant's record, his Honour did not see the prospects of rehabilitation as justifying an allowance for conditional freedom. There is a gap in the appellant's record of significant offending period of at least three years up to December 2010 However, given subsequent events, I am not able to say that the sentencing judge was plainly wrong in making that determination.
It is true that his Honour had a psychological report which dealt with the appellant's mild intellectual disability. The relevant details of that report are set out by Tennent J. Impaired mental functioning may give rise to an individualised approach in which moral culpability is reduced, and general and personal deterrence moderated or eliminated as considerations; it may have other effects on sentencing considerations such as the effect of imprisonment: R v Verdins (2007) 16 VR 269 at 276–277 [32]; Startup v Tasmania [2010] TASCCA 5 at [6].
Although the report notes a significant deterioration in cognitive functioning from pre-morbid levels, there is nothing in the report, taken along with the appellant's history, which compelled such an individualised approach. The desirability of supportive rehabilitative measures referred to in the report was reflected in the probation order which his Honour made. The order is for two years to commence on the appellant's release. Special conditions of the order are directed to treatment for alcohol dependency, and the appellant's involvement in general educational and rehabilitative programs.
The appellant has not shown the sentence to be manifestly excessive.
File No 161/2015
RICKY ALBERT DEVINE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
26 August 2015
I have had the advantage of reading the reasons of Tennent J. I agree with her Honour's reasons and would also dismiss the appeal.
In some cases, a non-parole order may make a sentence manifestly excessive, even if the head sentence is not manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 per Porter J, with whom Tennent and Wood JJ agreed, at [56]-[59]. This is not such a case. To succeed on the ground that a sentence is manifestly excessive the appellant must demonstrate that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion. This Court is not to substitute its own opinion for that of the sentencing judge even if it would have exercised the sentencing discretion in a different way. The appellant's repeated serious violent offending, despite sentences of imprisonment in which he had been permitted the chance of parole, pointed to a very limited chance of rehabilitation and a strong need to protect the public from his violent conduct. I am quite unpersuaded that the learned Chief Justice's exercise of the sentencing discretion miscarried by not ordering eligibility for parole. The course his Honour took was well within the range of sentences reasonably open to him.
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