Devine v The Queen
[2003] TASSC 52
•3 July 2003
[2003] TASSC 52
CITATION: Devine v R [2002] TASSC 52
PARTIES: DEVINE, Robert Joseph
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 71/2002
DELIVERED ON: 3 July 2003
DELIVERED AT: Hobart
HEARING DATE/S: 26 May 2003
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Non-parole period or minimum term - Tasmania - Whether non-parole eligibility for seven years of a sentence of nine years for aggravated armed robbery cumulative upon an earlier non-parole period of five and a half years of a sentence of seven years imprisonment manifestly excessive.
Aust Dig Criminal Law [880.5]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: T J Ellis SC
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 52
Number of paragraphs: 32
Serial No 52/2003
File Nos CCA 71/2002
ROBERT JOSEPH DEVINE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
EVANS J
3 July 2003
Order of the Court
Appeal allowed.
In place of the order of the learned trial judge that the appellant is not to be eligible for parole until he has served seven years of the sentence of imprisonment, it is ordered that he not be eligible for parole until he has served half of the sentence.
Serial No 52/2003
File No CCA 71/2002
ROBERT JOSEPH DEVINE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
3 July 2003
I agree with the other members of the Court that the sentence of nine years' imprisonment was not manifestly excessive for the aggravated armed robbery committed by the appellant against a newsagency. He used a sawn-off firearm. Whether it was loaded is not known, but he had ammunition. When the proprietor of the newsagency resisted, the appellant used actual violence to get his way and make off with close to $3,000.00.
He had an appalling record for dishonesty and violence and was entitled to no mercy. His record included causing death by dangerous driving and assault, together with robbery with violence (two charges) and aggravated burglary, for which he was sentenced to four years imprisonment in 1986 and armed robbery, for which he was sentenced to 8 years' imprisonment in 1991. Nineteen months before this crime he committed an aggravated burglary involving violence. Although a long sentence, nine years imprisonment was thoroughly justified, even having regard to the fact that it was ordered to be served cumulatively upon the sentence of seven years imprisonment imposed only three months earlier for the aggravated burglary. It was not a crushing sentence when regard is had to the crime and his record.
However, I also agree with the views of the other members of the Court that the non-parole period of seven years cumulative upon the non-parole of five and a half years imposed for the aggravated burglary, was crushing and manifestly excessive and that the learned judge ought to have had more confidence in the ability of the parole board to make an appropriate determination about parole many years from now. I agree that the appeal should be upheld in part and that the appellant's parole eligibility should be varied, so that he becomes eligible for parole after he has served half of the sentence.
File No CCA 71/2002
ROBERT JOSEPH DEVINE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
3 July 2003
The appellant was convicted of one count of aggravated armed robbery and sentenced to a term of imprisonment of nine years, with a non-parole period of seven years. The ground of appeal is that the sentence:
"… was manifesive [sic] in all the circumstances of 9yrs/with a no parole period of 7 years".
Soon after the opening of a newsagency at Chigwell at 6am on 21 September 2001, the appellant, armed with a sawn-off firearm, entered the premises and demanded money. The newsagent protested and in the ensuing struggle was struck to the head by the butt of the weapon. The firearm was then pointed at the man, who handed over some $3,000 in money, none of which was recovered. There was no evidence that the weapon was loaded, although a .22 cartridge was located on the floor of the premises after the robbery.
The offender, aged 47, has an extensive record of prior convictions commencing in 1966. He was not entitled to the benefit, as mitigatory matters, of either remorse or that of plea. In his comments on passing sentence, the learned sentencing judge stated:
"You are 45 years of age and have a very long list of prior convictions, most of which are for crimes of dishonesty. Some of those crimes also involve violence. Among the seven pages of your prior convictions, in 1986 you were given four years' imprisonment for robbery with violence. In December 1991 the Court sent you to prison for eight years for armed robbery, and halfway through that sentence, you were released on parole. However, 18 months after your release on parole, you committed the crimes of burglary and stealing and a few years after that, as far as I understand your record, the parole was revoked."
The comments were an accurate reflection of the fact that amelioration of penalty because of possible reform was not relevant to the sentencing process.
The sentence imposed was at the highest range of penalty (Devine v R (1993) 2 Tas R 458; R v McFarlane (1993) 2 Tas R 201) but was not disproportionate to the nature and circumstances surrounding the commission of the crime (R v De Simoni (1981) 147 CLR 383). The antecedent criminal history warranted the imposition of condign punishment (Veen v R [No 2] (1988) 164 CLR 465).
Effect of sentence
The real complaint of the appellant is the length of the sentence, and in particular, its non-parole period, in the light of a sentence previously imposed.
On 7 May 2002, the appellant was sentenced to a term of imprisonment of seven years with a non-parole period of 5½ years, for the crime of aggravated burglary and stealing committed on 3 February 2000. That conviction and sentence has been the subject of an unsuccessful appeal on the part of the appellant (Devine v R [2003] TASSC ). The crime which is the subject of this appeal was committed on 21 September 2001. The sentence was cumulative to that previously imposed. The learned sentencing judge understood the crime to have been committed whilst the appellant was on bail for this matter. Nothing turns on this since the reverse occurred, namely that this crime was committed whilst the appellant was on bail for the previous crime.
The appellant is an habitual criminal. His first conviction, imposed by the Children's Court, was recorded in August 1966 when he was aged 10. Between that date and October 1972, he appeared in the Children's Court on some 11 occasions with respect to some 36 crimes or offences and was made the subject of various wardship or supervisory orders. On 10 August 1973, he was sentenced by the Children's Court to nine months' imprisonment. His first appearance as an adult occurred on 8 July 1974 when he was sentenced to a further term of 18 months' imprisonment and transferred to the Royal Derwent Hospital at the Attorney-General's Pleasure. He was then aged 18.
It is difficult to discern the length of the subsequent terms of imprisonment actually imposed since the records available to this Court do not always state whether sentences imposed on the same day were cumulative or concurrent, and whether successful appeals related to one or more of the previous convictions. On my best calculation, until the sentence imposed on 7 May 2002, the appellant has been sentenced to actual terms of imprisonment for some 25½ years. That figure does not take into account concurrent or suspended sentences or time spent on parole.
Historically, courts paid little attention to the import of parole or remissions in the determination of the head sentence (Warner, Sentencing in Tasmania, Federation Press (1991) 9-124). The Indeterminate Sentences Act 1921 and its successor, the Parole Act 1975, permitted the release of a prisoner on parole after he or she had served at least one third of the sentence, later increased to one half by Act No 7 of 1987. Assessment of eligibility was determined by a quasi-judicial body on a variety of criteria and the courts had little part to play except, perhaps, to correct error by way of judicial review.
In 1987 (Act 7 of 1987), the Parole Act was amended to permit a court to order that a person not be eligible for parole at all or become eligible only after the expiration of a stated period. In 1989, (Act 100 of 1989), Parliament further amended the legislation to correct an anomaly whereby prisoners subject to cumulative sentences were not treated the same as those serving a single, but identical, sentence. That correction was maintained in the provisions of the Corrections Act 1997, s71. The intention of the amendment was stated by the then Attorney-General in his Second Reading Speech of 30 November 1989 to be:
"Quite clearly the anomaly discovered in Part IIIA of the Parole Act causes injustices. This can be shown by the following example: a prisoner who receives four cumulative sentences of six months each is not entitled to parole and must serve his full sentence, whereas a prisoner who receives one sentence of two years or two cumulative sentences of twelve months is eligible for parole after completing one half of that sentence.
This is quite clearly an unintended consequence of the 1987 amendments, and there already have been six prisoners whose applications for parole have been refused because they were ineligible due to the operation of section 12D(4).
The Bill overcomes the problem by eliminating from section 12A(1) the notion of the six month minimum in respect of a sentence of imprisonment and amends section 12C(1) so as to impose the six month minimum in relation to the period of imprisonment to which a prisoner is subject whether that period comprises a single sentence of imprisonment or a number of such sentences.
Parole has been accepted in most advanced communities as a valued correctional measure because it offers a hope of possible future early release to a prisoner sentenced to imprisonment. The Bill will ensure that prisoners are not denied the benefits of parole by a technical hitch in the law."
In 1993, the legislation was further amended (Act 77 of 1993) to take into account the period of any suspended portion of a sentence of imprisonment and to provide that the statutory non-parole period be calculated by reference to the time actually required to be spent in prison. In 1994, for the first time (Act 2 of 1994) it became mandatory for courts to impose a minimum non-parole period in cases involving persons sentenced to life imprisonment. The amendment followed the abolition of mandatory terms of life imprisonment and was, in part, designed to accommodate the transfer of responsibility for release from the Executive Governor to the Parole Board. The mandatory requirement was stated by the Minister in the Second Reading Speech of 19 October 1994, to:
"… restore credibility to the public's perception of the sentencing process by bringing the primary decision about the length of detention to be served by life sentence prisoners into the public domain."
The debate, sometimes entitled "Truth in Sentencing", has not been confined to this jurisdiction, or even Australia. It has arisen because of a perception that convicted criminals were not being required to serve sufficient portion of an imposed sentence or that the courts were too lenient in their determination of sanction. (See generally: Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power, Handsley, (1998) 20 Sydney Law Review 183; Sentencing: The Road to Nowhere, Bagaric, (1999) 21 Sydney Law Review 597; Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium, Kenny, (1999) 25 Monash University Law Review 209; Mandatory Sentences and the Constitution: Discretion, Responsibility, and the Judicial Process, Manderson and Sharp, (2000) 22 Sydney Law Review 585; Recent Developments in Canadian Criminal Law and Sentencing, Ferguson, (2001) 25 Crim LJ 140; Going Overboard? Debates and Development in Mandatory Sentencing June 2000 to June 2002, Morgan, (2002) 26 Crim LJ 293 .)
In 1997, Parliament enacted substantive legislation affecting sentencing and custodial sentences (the Sentencing Act 1997, the Corrections Act 1997), although the provisions relevant to this appeal remained unchanged. The legislation mentioned the purport of the amendment made by Act 100 of 1989, namely the taking into account of cumulative sentences. Courts continued to have the power, but not the obligation, to fix non-parole periods other than in cases involving terms of life imprisonment (Corrections Act, ss68 - 71). The sentence imposed in May 2002 was subject to those provisions.
However, by Act 25 of 2002, Parliament required courts to fix, in every case to which parole applied, a non-parole period, failing which the offender was deemed to be ineligible for parole. The amendment reflected the public debate already referred to and, in introducing the amendments, the then Attorney-General stated (Second Reading Speech of 29 May 2002):
"At the present time the Corrections Act provides that a prisoner must complete half of the sentence before being eligible for parole. However, an important matter to recognise is that since 1987 the courts have had the power, in respect of fixed term sentences, to either order that a person be ineligible for parole or to increase the one half minimum non-parole period to such period as determined by the court. With the exception of fixed-term sentences for murder, this power has been relatively infrequently used.
The Government's view is that the Sentencing courts are far better placed to determine exactly when a convicted person should be eligible for parole. The court has all the facts of the case before it and has knowledge of the effect it has had on the victim or the family of a deceased victim and the community in general. These are matters which are dissipated because of the passage of time when the Parole Board comes to consider parole.
The bill amends the Sentencing Act to provide that if a court fails to make an order in relation to parole under section 17(2) of that act, then the offender will be deemed ineligible for parole. This will in effect force the courts to impose a non-parole period failing which the offender cannot be paroled. Where a court does exercise its power under section 17(2) it will be required to give reasons.
With these amendments, it will be the sentencing court which determines in an open, public and accountable way, the actual time that a person must spend in prison prior to being eligible for parole. This situation will contrast with the process currently followed where it is left to the Parole Board to decide, in many cases where years have elapsed since the crime was committed. This will ensure that there will be no doubt in the public's mind about the actual time that must be spent in prison before a prisoner may be considered for release on parole."
The requirement for courts to consider and fix a non-parole period alters the historic approach that they ought not be concerned with the parole process. The amendments might reflect a compromise between the tension of public perception and the inherent difficulty in a sentencing court assessing future risk prospects and rehabilitation as shown by conduct in prison. The resolution of that tension was the enactment of the Corrections Act, s71, which relevantly provides:
"71 ¾ (1) In this section ¾
'designated sentence' means ¾
(a)a sentence of imprisonment to which a non-parole period is applicable or in respect of which the prisoner is ineligible for parole by operation of section 17(3A) of the Sentencing Act 1997; or
(b)a sentence of imprisonment to which an order under section 17(2)(a) of the Sentencing Act 1997 is applicable;
'minimum term', in relation to a designated sentence, means –
(a)in the case of a sentence to which a non-parole period is applicable, that non-parole period; or
(b)in any other case, the sentence itself.
(2) If, at any time, a person is subject to 2 or more designated sentences ¾
(a)the minimum terms relating to those designated sentences, subject to subsections (3) and (4), are to be cumulative upon, or concurrent with, each other in like manner as the sentences to which they relate; and
(b)the completion by a person of the non-parole period applicable to a sentence to which the person is subject is not to be taken into account for the purposes of section 70 if, at the time of completion of that non-parole period, the person has not completed the minimum term relating to any other designated sentence to which the person is subject.
…
(5) If, under subsection (2), the minimum term in relation to a designated sentence is cumulative upon the minimum term in relation to another such sentence, the later minimum term is to be taken to commence upon the expiration of the earlier minimum term, notwithstanding that the earlier sentence has not been completed."
The enactment of the provision shows that whilst Parliament was concerned about community perception, it continued to pay regard to the issues of totality, consistency, and general fairness affecting convicted persons.
In my respectful opinion, the sum of the two sentences, given the cumulative effect of the non-parole periods, was greater than that which would have been reasonable as a "whole" sentence. Its effect was to inhibit the capacity of the Parole Board to assess suitability for release at an appropriate future time. The legislation did not require a court to fix more than the "minimum statutory period", but required consideration of a penalty which reflected the nature of the crime and community perception or expectation. The sentence imposed on 7 May 2002, did so and the subsequent sentencing judge was not required to fix a non-parole sentence without regard to the earlier judicial order. The learned sentencing judge, while entitled to determine a "non-parole period", was likewise obliged to consider other relevant sentencing principles, including the purport of Act 100 of 1989. The non-parole period of 12½ years on a 16 year sentence, represents a percentage figure of 78 per cent. My conclusion, reached as to the disposition of this appeal, does not mean that the offender is entitled to release at a date earlier than that fixed by the learned sentencing judge, but that the Parole Board is not precluded from considering the matter. The offender was afforded little incentive to achieve early release and a statutory authority precluded from paying regard to any demonstrated attempt on the part of a prisoner to "retire".
With due respect to the learned sentencing judge, the imposition of the non-parole period did not sufficiently accommodate the circumstances of the offender, the responsibility of the Parole Board and gave undue weight to the demand required by public perception. It did not sufficiently take into account the effect of the sentence earlier imposed. As such, it ought be regarded as "manifestly excessive". The head sentence might well have been justified and not subject to an appeal involving a discretionary exercise, but the "non-parole period" warrants intervention.
Conclusion
I would dismiss the appeal against the head sentence but, consistent with the decision of this Court in Shipton v R [2003] TASSC 23, uphold the appeal against the provision of the non-parole period. I would substitute a fixing of a non-parole period of the statutory period of one half of the sentence imposed.
File No CCA 71/2002
ROBERT JOSEPH DEVINE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
3 July 2003
I agree with Slicer J that the appeal against the head sentence of nine years should be dismissed and that the appeal against the non-parole period of seven years should be allowed.
The attention which a sentencing court must pay to an offender's eligibility for parole has changed markedly over the years, as has the importance of parole to a prisoner's prospects of gaining early release. Prior to the Prison Amendment (Remissions) Regulations 1993, which took effect on 8 December 1993, prisoners were usually granted a remission of one-third of their sentence for good conduct and industry. From that date, the maximum remission from a sentence a prisoner could obtain was three months. Prior to the amendments made to the Parole Act 1975 by the Parole Amendment Act 1987, subject to a prisoner having served six months of a sentence, the prisoner was automatically eligible to apply for parole after serving one-third of the sentence. The 1987 amendments gave the sentencing court the option of specifying a non-parole period, ordering that a prisoner be not eligible for parole, or doing neither. If the latter, the prisoner was automatically eligible to apply for parole after serving one-half of the sentence. With effect from 1 October 2002, the Sentencing Act 1997, s17, was amended by the Sentencing Amendment Act 2002 with the result that the position now is that in the absence of a court order specifying that a prisoner is eligible for parole after serving a specified period of the sentence (which period cannot be less than the greater of six months or one-half of the period of the sentence), the prisoner is not eligible to be released on parole.
As prisoners are not to be released on parole before the completion of a continuous period of six months' imprisonment (Corrections Act 1997, s70(b)), and they are eligible for a remission of up to three months from their sentence, then, except in the case of a cumulative sentence, there is no occasion for a sentencing court to contemplate fixing a parole eligibility period when imposing a sentence of less than nine months. When imposing a sentence of more than nine months' imprisonment, it may be appropriate for the sentencing court to also make an order as to parole eligibility. Such an order is often preferable to the suspension of portion of a sentence. An order which partly suspends a sentence is made on the assumption that, for reasons such as a prisoner's rehabilitation prospects, it will be appropriate to release the prisoner after serving the operative period of the sentence imposed. When the time comes to release the prisoner, that assessment may be shown to be quite wrong by intervening events such as the conduct of the prisoner during the operative period of the sentence. For this reason there is considerable merit in leaving it to the Parole Board to determine whether a prisoner should be released once the prisoner has served the minimum period which the court considers appropriate.
In determining whether a prisoner should be released, the Parole Board is required by the Corrections Act, s72(4), to take into account:
"(a) the likelihood of the prisoner re-offending; and
(b) the protection of the public; and
(c) the rehabilitation of the prisoner; and
(d) any remarks made by the court in passing sentence; and
(e) the likelihood of the prisoner complying with the conditions; and
(f) the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment; and
(g) the behaviour of the prisoner while in prison; and
(h) the behaviour of the prisoner during any previous release on parole; and
(i) the behaviour of the prisoner while subject to any order of a court; and
(j) any reports tendered to the Board on the social background of the prisoner, the medical, psychological or psychiatric condition of the prisoner or any other matter relating to the prisoner; and
(k) the probable circumstances of the prisoner after release from prison; and
(ka) (Since 1 September 2002) any statement provided under subsection (2B) by a victim of an offence for which the prisoner has been sentenced to imprisonment; and
(l) any other matters that the Board thinks are relevant."
For the purposes of a determination on whether a prisoner should be released on parole, the Board may interview the prisoner, Corrections Act, s72(2). In my sixteen years' experience as a deputy to the Chairman of the Parole Board, the Board invariably interviewed applicants for parole and in some instances interviewed applicants on a number of occasions. Pursuant to the Corrections Act, s63(1), the Board may:
"(a) by summons signed by the secretary of the Board, require any person to attend before the Board; and
(b) require any person to give oral or written answers to any questions relating to any matter before the Board; and
(c) by summons signed by the secretary of the Board, require any person to produce any document in the person’s possession or control relating to any matter before the Board; and
(d) examine a witness on oath or affirmation which may be administered by any member of the Board; and
(e) require any information given to the Board to be verified by statutory declaration."
The procedure followed by the Board when considering an application for parole, coupled with the range of information available to it, in my experience, put the Board in a good position to assess whether a prisoner should be released. For my part, I am far more confident about making a parole eligibility order, which requires the Board at a future date to assess whether a prisoner should then be released, than I am about making an order that a prisoner's sentence be suspended from a future date.
When a sentence of imprisonment is imposed, the prisoner, not infrequently, has been assessed as incorrigible and unlikely to reform. Sound as that assessment may seem to be at the time of sentencing, it may prove to be wrong. For this reason, particularly in relation to a long sentence, there is merit in fixing a parole eligibility date. A further reason for doing so is that it reduces the crushing effect of a long sentence and provides the prisoner with some inducement to reform. Of course, the parole eligibility date should not be so early as to detract from the capacity of a sentence to achieve objectives such as general and personal deterrence and retribution.
The appellant has shown himself to be an incorrigible criminal and it may be that he is beyond redemption. The head sentence of nine years' imprisonment imposed on the appellant is, in my view, entirely appropriate, even allowing for the fact that the appellant was, at the time that he was sentenced, serving a sentence of seven years' imprisonment. Parole and remissions aside, the appellant will complete these two sentences, which total 16 years, on 18 February 2018; by which date he will be 61 years of age.
The totality principle applies to both the head sentence and a non-parole period, Mill v R (1988) 166 CLR 59. 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 detailed 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.
In the circumstances of the appellant, I consider that a parole eligibility period of seven years was manifestly excessive when that period is added to the parole eligibility period of 5½ years fixed in relation to the sentence the appellant was serving at the time he was sentenced. In my respectful opinion, a parole eligibility period of 12½ years is crushing, and needlessly so. A shorter parole eligibility period can be fixed without taking away from the integrity of the sentence. In this context it is important to keep in mind that whilst a shorter parole eligibility period will provide the appellant with some inducement to reform, he will only gain parole if he is able to satisfy the Board that he should be released.
I would dismiss the appeal against the head sentence, but uphold the appeal against the parole eligibility period and substitute a period of four years six months. In that event, as to the two sentences under consideration, the appellant will be eligible to apply for parole after serving ten years of those sentences.
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