Devine v Tasmania
[2006] TASSC 104
•1 December 2006
[2006] TASSC 104
CITATION: Devine v Tasmania [2006] TASSC 104
PARTIES: DEVINE, Gary John
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 62/2006
DELIVERED ON: 1 December 2006
DELIVERED AT: Hobart
HEARING DATE: 2 November 2006
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – One count of assault and two counts of stealing – Whether sentence manifestly excessive.
Aust Dig Criminal Law [1018]
REPRESENTATION:
Counsel:
Appellant: K L Baumeler
Respondent: P Jones
Solicitors:
Appellant: Butler McIntyre and Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 104
Number of paragraphs: 18
Serial No 104/2006
File No CCA 62/2006
GARY JOHN DEVINE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
EVANS J
1 December 2006
Orders of the Court
Appeal dismissed.
Serial No 104/2006
File No CCA 62/2006
GARY JOHN DEVINE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
1 December 2006
The facts and evidence are sufficiently identified by Slicer and Evans JJ and I respectfully agree with them that there is no merit in the appeal.
Concerning the first ground, which asserts errors of fact in the comments on passing sentence, I concur with what is said by Evans J. Concerning the second ground, which asserts error by declining to impose a non-parole period with respect to the sentence of 15 months' imprisonment, no error has been established. There is no statutory right to parole. The Sentencing Act 1997, s17(3A), provides that if no order is made, there is no eligibility for parole and subsection (1) provides that a court may make an order that the offender is not eligible for parole or that the offender is not eligible for parole before the expiration of such period of time as may be specified in the order and which must not be less than one half of the period of the sentence. No case was relied upon as authority for the proposition that the learned judge ought to have allowed parole in this case and that the failure to do so amounted to an error. The appellant is 47 years old. He has a long record of offending in various ways over the last 34 years. His prior offences include dishonesty and violence on many occasions and he has been imprisoned a great number of times. He cannot expect merciful sentences. The question of parole is a more important consideration with long sentences than it is for a relatively short sentence of 15 months' imprisonment. If he behaves himself in prison, he is likely to be granted the usual remission and released after 12 months. The law prohibits an order for parole eligibility before the service of half of a sentence, so that without such eligibility it is unlikely that he will have to spend a substantially greater time in prison so as to make a difference that might be significant for an appellate court.
Having regard to his appalling record and to his crimes of violence and dishonesty on this occasion that were committed against a vulnerable member of society who had almost no ability to resist, the sentence was not manifestly excessive, as is asserted in the final ground of the appeal.
File No CCA 62/2006
GARY JOHN DEVINE v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
1 December 2006
The appellant was sentenced to a term of imprisonment for 15 months upon his conviction of one count of assault and two counts of stealing. The jury acquitted the appellant of a second count of assault, but the verdict did not preclude a finding that the appellant had been present at the time of the assault but not a party to the particular act of violence alleged.
The complainant and the appellant's son, both aged in their mid-twenties, were acquainted. The complainant suffered from a form of impairment and was a person made vulnerable to exploitation by others. On 19 June 2005 the son, Aaron Briers, and the complainant met by arrangement. Briers took the complainant to a bottle shop and the complainant spent some $90 in purchasing alcohol. The two went back to a unit. At some stage during the early part of the evening, the appellant punched the complainant, using as an excuse a reply made by the complainant to Briers. In the words of the complainant, the appellant said, "You speak to my son like that I'll push you down the stair two [sic] a flight of stairs" before punching him to the head.
It is difficult to accurately recount the precise series of events during the course of the evening, but the following account provided by the complainant to the jury is a reliable basis for the determination of this appeal. The sequence of events can be summarised as follows:
(1)There were other people at the residence. Some time after the initial assault, the complainant attempted to leave. He told the jury "I jumped the fence trying to … get away … I run and run, I tried to get away, and them [sic] they find me about 30 seconds later … Devine and two other people what was at the unit, I haven't seen before".
(2)He said that the group then went for a drive in a motor vehicle, but then went back to the unit. His evidence continued:
"Did anything happen when you got back to the unit? ... Big time, yes.
What happened. ... I knew – I knew suddenly would come to me –
Can you just take us back to the unit. Did you go inside or stay outside? ... Inside.
And were the same people who were before or were there different people? ... No, same people.
When you were back in the unit what happened? ... If I sit down in the dip, I sit down in the different seat and then – them asked me all sort of question –
What sort of questions and who asked – well, sorry, I'll break that down. What sort of questions were you being asked? ... Like, like my bankcard, all of that, and the details.
Who asked you about your bankcard and the details? ... Devine, and Aaron while leaning over.
Did they say anything else about your bankcard? ... They then told me ‘You tell the number and you won't get hurt'.
Did you tell them the number? ... Not straight away, no.
Were you hurt after that? ... A little bit.
What happened? ... He punched me in the head again.
When you said he punched you in the head again, who do you mean by ‘he'? ... Devine.
Now while you were at the unit during that time you said you talked about your bankcard. Did you talk about anything else with Mr Devine? ... No.
Was anything said about why you should give them your bank details? ... What he told me was we can do it is easy way or the hard way. I took the easy way out."
(3)At the unit, attempts had been made to have the complainant purchase a motor vehicle. The account provided by the complainant was:
"Did anybody try to sell you something when you were in the unit? …Oh yeah, (indistinct words) tried to sell me the car.
Hm mm. When you say 'they' who do you mean by 'they'? … Aaron and Devine.
…
Do you know which car they were trying to sell you? … Yeah, the black one.
Hm mm. ... The black car.
…
Did they say how much they wanted for the car? … Eight hundred.
And what did you say when you were asked to buy the car? … No.
Was there a particular reason you didn’t want to buy it? … I can't drive."
(4)The complainant then said that he was taken with the others in the motor vehicle and at that stage believed that he was going to be driven home. He said that the car then drove to the branch of a bank at which the complainant had an account. He said that Aaron Briers knew of the name of his bank, since they both used the same bank. His account continued:
"What happened when you got there? ... We stopped the car.
Hm mm. ... Devine, he got out and he stand – he got out, lent on the car door, on the back door. Aaron got out and me, went over to the machine. I put my number in. Aaron did – pushed me a little bit to one side, he put – he draw about $50.00 out. After he said to Devine 'That is not enough' he draw more money out –
I'’ll just pause you there. You said Aaron said 'It's not enough'. Had anything been said about what the money was for? ... No.
Was anything said about how much money was needed? ... No.
…
… did you put your number in the second time? ... Yes.
And what happened after you'd put your number in? ... The same thing happened. Aaron went to push me a little bit to one side. He dud his business and more money did come out. Now I didn't see."
(5)The evidence established that the sum of $800 was withdrawn by Briers on the second occasion.
In cross-examination, the complainant conceded that it might not have been the appellant who struck him on the second occasion. He conceded that he could not remember who hit him on that occasion. The finding of the jury is but a reflection of that concession and did not constitute a finding that the appellant played no part in the events described by the complainant as having occurred at the unit.
The grounds of appeal claim error in that:
"(i)His Honour erred by making findings of fact inconsistent with the jury's verdict, of acquitting the Appellant of count 2 of the indictment.
(ii)His Honour erred by declining to impose a non-parole period of the 15 month sentence.
(iii)The sentence imposed was manifestly excessive in all the circumstances."
The findings of the learned sentencing judge in his comments on passing sentence were:
"During the course of the evening, you hit the complainant on the right temple after he had twice refused your son's request to drink alcohol. It was a strong blow with the edge of your hand and caused bruising to the complainant's eye. There was no excuse for this unprovoked assault.
During the next hour or so, you and your son firstly tried to trick the complainant into giving you money by pretending to sell your car to him for $800 and secondly, by threatening him with violence if he did not give you his bankcard and personal identification number. At one stage during the evening, the complainant became so frightened that he ran away from the unit, but you and the others jumped in your car, found him, brought him back and continued the intimidatory behaviour.
Eventually, you and your son, together with some others, took the complainant in your car to an automatic teller machine. I find that the threats of violence continued during the journey. Your son went with the complainant to the ATM while you stood nearby. As a result of the intimidation and threats that he had suffered, the complainant put his card in the machine and either entered his PIN, or gave that number to your son who then entered it in the machine. Your son then pushed the complainant aside and withdrew, firstly, $60 and then immediately afterwards, $700. The complainant and your son then returned to the car. Your son gave the complainant $60 and you, or you and your son, and perhaps some of the others in the car, kept the $700."
His findings were consistent with the verdict. A specific error was claimed in the finding of the learned sentencing judge that "the threats of violence continued during the journey". The evidence of the complainant was that when the car had pulled up near the bank, he was further threatened. His evidence was:
"Well how did you know to walk up to the machine, like someone must have said something to you? ... The car got close to the machine anyway –
Yeah, but what is it that made you get out of the car and go to an ATM with Aaron? Have you asked to go to the ATM?
ms jones: Your Honour, the question has been put (indistinct words) –
witness: No, I did not.
ms baumeler: You didn’t ask to go ... Them did.
Okay. But - ... I wasn't going to get out –
Right. So you weren't going to get out ... No.
Aaron asks you to get out ... Yes.
Okay. But then why do you go to the ATM? ... [what] choice [did] I have –"
He then said that the appellant got out of the car. I am prepared to interpret the finding of the learned sentencing judge that there was further violence during the course of the journey as including the period up until the time that the appellant and complainant left the vehicle.
Counsel for the appellant submitted that the appellant had begun to alter his way of life because of the relationship with his present partner and impending birth of their child, but he is yet to demonstrate any process of change. Convictions in May and October 2005 and July 2006 show repetition of antisocial conduct by disorderly behaviour, breach of restraint order, damage to property, and unlawful possession of a dangerous article in a public place.
The appellant has an extensive record for crimes of dishonesty, violence and varying forms of antisocial conduct between 1972 and 2006. He was aged 47 at the time of sentence. The nature of the crimes committed, the vulnerability of the complainant and the record of the offender warranted the sentence imposed. The learned sentencing judge was entitled not to fix a non-parole period. The statutory minimum for such period is 7.5 months. Allowing for remission, the likely period to be served is 12 months. On the hearing of the appeal it was contended that although the sentencing judge was entitled to increase the non-parole period from the statutory minimum, he ought to have made some allowance for that period. Here such an exercise would involve but two months.
This is an appeal, not a rehearing.
I would dismiss the appeal.
File No CCA 62/2006
GARY JOHN DEVINE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
1 December 2006
I have had the advantage of reading the reasons for judgment prepared by Slicer J and agree with him that the appeal should be dismissed. I add the following in relation to the first ground of appeal, a contention that the learned sentencing judge erred by making findings of fact inconsistent with the acquittal of the appellant on count 2. That count related to the complainant being punched to the head when the appellant and his son were endeavouring to obtain the complainant's bankcard details from him. In his evidence-in-chief, the complainant said the appellant and his son lent over him and told him that if he gave them his bankcard number he would not get hurt. He said the appellant punched him in the head when he did not provide the number straight away. When cross-examined about this assault, the complainant said he could not remember who it was who had punched him and it was possible that it was not the appellant. In the light of this evidence and in the absence of other evidence that the appellant was the assailant on this occasion, the jury very properly acquitted the appellant on count 2. The learned sentencing judge's findings of fact for sentencing purposes reflect that acquittal. His finding that during the course of the evening the appellant and his son threatened the complainant with violence if he did not provide his bankcard details was supported by the evidence and was in no way inconsistent with the acquittal. That finding related to what occurred between the two incidents which brought about the appellant's conviction for assault and his convictions for stealing. A sentencer is not only entitled, but bound, to take into consideration all the circumstances surrounding offences; R v Timbs 11/1974, Neasey J at 5. Clearly what occurred between the incidents, which gave rise to the appellant's convictions, was relevant to an assessment of his general culpability.
In the course of arguing this ground of appeal, counsel for the appellant contended that the learned sentencing judge had made a specific error in finding that "threats of violence continued during the journey" from the unit to the bank. There was clear evidence that prior to the journey the complainant was subjected to the threat of violence. An inference that the intimidation of the complainant continued during the journey can be drawn from his evidence to the effect that he only got out of the car and went to the ATM as he had no other choice. The appellant's son gave evidence that when they arrived at the bank, the appellant told the complainant to get some money but the complainant refused; whereupon the appellant "threatened him again" with abusive language and it was only then that the complainant left the car. Whilst the learned sentencing judge said in the course of the sentencing hearing that he did not accept the evidence of the appellant and his son, I do not understand this comment to extend to evidence against their interests, which this evidence was. The finding that threats of violence continued during the journey was open and was not an error.
I would dismiss the appeal.
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