Director of Public Prosecutions v Devereaux
[2018] VCC 1128
•10 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-01861
| DIRECTOR OF PUBLIC PROSECUTION |
| v |
| ANTHONY DEVEREAUX |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2018 | |
DATE OF SENTENCE: | 10 July 2018 | |
CASE MAY BE CITED AS: | DPP v Devereaux | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1128 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Hughes | OPP |
| For the Accused | Mr C Glerum | James Dowsley & Associates |
HIS HONOUR:
1 Anthony Devereaux, you have pleaded guilty to one charge of using a carriage service to harass, one charge of blackmail and one charge of threat to kill. The facts of your offending are set out in Exhibit A, the prosecution opening. I was informed by your counsel I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence, and I sentence you on the basis of the facts set out therein.
2 Very briefly stated, in December 2016 you were in a relationship with a woman who informed you that 30 years previously, when she was eight, she had been sexually abused by a man who was then 20 years of age. You obtained the man's telephone number and over two days on 26 and 27 December 2016, made 23 phone calls to that man. In the course of those calls you threatened to kill him on three occasions, demand of him that he provide you with his motor vehicle and $50,000, otherwise you would have him imprisoned, tell his wife and ruin his life.
3 You repeatedly threatened the man, the phone calls were recorded, and I have listened to those calls, and you were clearly affected by alcohol, threatening and menacing. The threats are set out in paragraphs 12, 20 and 29 of Exhibit A. The demands with menaces are set out in paragraphs 14, 15, 28, 31 and 33. In addition, you made numerous threats about what would occur should your victim contact the police. You admitted a criminal record. On 23 September 2002, you were before the Sunshine Magistrates' Court and got a bond in relation to that offence. On 14 September 2007, you were again given a bond with a condition that you complete a men's behaviour program for breach of intervention order.
4 On 23 November 2010, you were fined $500 without conviction for criminal damage and unlawful assault. On 9 May 2011, you got a community based order in respect of offenses of criminal damage. You had to perform 80 hours of unpaid community work. On 7 August 2012, you breached that community based order and received as three month wholly suspended term of imprisonment. On the same day, you were before the court on charges of threat to inflict serious injury, recklessly cause injury, wilful damage to property and criminal damage, and you received another community based order for 12 months. That community based order was again before the Frankston Magistrates' Court on 20 October 2016 for contravening a family order, and you received another community based order. There'd been a variation of that order, and it follows as I see, that you were on a community corrections order at the time of the offending for which I am to sentence you, and you had been for two months.
5 Your victim made a victim impact statement, and he says that he has as a result of this stressful event, developed severe diarrhoea, he had – led to his being hospitalised for three days. He sets out how his sleeping patterns and those of his wife were disturbed. He slept with a knife under his pillow, and he felt trapped in his own home. He was in fear for his life, he took antidepressant medication, and erected a fence and electronic security at his home, in order to protect himself from you. I take the contents of the victim impact material into account in sentencing you.
6 Turning back to matters personal to you, you are now 49 years of age, being born on 22 March 1969. Your personal history is set out in your counsel's written submissions, Exhibit 1, and the psychological report from Odyssey House, Exhibit 2. You were educated to Year 12 level, then completed a diploma of food technology. You worked in that field for about 16 years. You were involved in a fatal motor car accident in 1994 that interfered with your ability to work for some time, and left you with self-diagnosed PTSD. You have been married twice and have an 18 year old daughter. You have had intermittent work between 2004 and 2013, and you have not worked at all since 2013.
7 You have a long history of illicit drug use and abuse of alcohol. You started using cannabis at the age of 20. You used amphetamine for at least – for the last five years, and you have in the past used cocaine and ecstasy. Three years ago you did 14 months at Windana in-house rehabilitation, and recently, between 4 January and 20 April of this year, did a three and a half month in-house rehabilitation program at Odyssey House. I refer to Exhibits 3 and 4 tendered upon your plea. You determined that the conditions at Odyssey were too onerous for you, and elected not to move on to phase 2 of that program. You left on 20 April of this year, and I was informed that you have been drinking alcohol since then, albeit at a reduced rate. You claim to be determined to continue to obtain assistance to control your alcohol addiction.
8 Up until your remand in custody, you were living predominantly with your new partner, Susan, in Sunbury. You have known her for over 20 years. She knows of your history and is supportive of you. She attended court upon your plea. She believes you are a decent person when you are sober. You are in receipt of a carer's pension relating to Susan; she suffers from fibromyalgia. The psychological report, Exhibit 2, prepared by Odyssey House at the commencement of your program, describes you as, "being someone who struggles with anxiety, is perfectionist and finds interpersonal relationships difficult". The report continues, "He also appears to be avoidant and finds it difficult to take responsibility for his actions".
9 You are said to be of average intelligence; you lack insight into yourself and your emotions. You are very anxious, and find social situations confronting. You meet the criteria for avoidant personality disorder, experiencing feelings of inadequacy and sensitivity as to the perception of others. These factors lead to social inhibition and social ineptness. I accept that these factors will make your time in custody more onerous for you than it would for someone without those issues. I take the contents of the psychological report into account in sentencing you. You are entitled to a reduction in the sentence to reflect your pleas for guilty. Your pleas were entered at an early stage, that is at committal mention, you've saved the community the time and expense of a criminal trial, and your victim the trauma of giving evidence at court. I will return to the resulting reduction in sentence subsequently.
10 I also take into account the substantial admissions you made to the police when you were interviewed. There may have been some matters you forgot or were less than frank about, but in general, your admissions were significant. I accept that your prospects for rehabilitation are reasonable, provided you deal with your alcohol addiction. You have attempted to help yourself with your involvement with Odyssey. You are said to be committed to change in the future, if this offending and your prior criminal offending make it clear that your future rests squarely in your own hands. You need to deal with your alcohol issues or you are likely to reoffend.
11 I also give you credit for the time you spent in Odyssey House between 4 January 2018 and 20 April 2018. I have reduced the sentence I would otherwise impose to give you credit for that period of three and a half months in residential care. Your offending represents, in my view, a mid-level example of both blackmail and threat to kill. Each of those offences were committed on the telephone, and hence there is a substantial overlap between Charge 1, using a carriage service to harass; and two, blackmail; and three, threat to kill. However, there were 23 phone calls with harassing contact outside those relevant to Charges 2 and 3. You threatened serious injury short of death, you threatened injury to the victim and his wife if the police were called, you told the victim your recording would see him spend the rest of his life in gaol; all matters relevant to the separate use of a carriage service to harass charge.
12 I have been alert to avoid issues of double punishment when considering appropriate sentences for each charge, and accordingly have determined that the sentence in relation to Charge 1 will be totally concurrent with the sentence in relation to Charge 2. The fact that you committed these offences whilst affected by alcohol is not a mitigating feature of your case. Your prior criminal history involves you committing serious offences whilst intoxicated. You know and knew the effect that alcohol had on you. You took the risk of both drinking and offending. Your counsel submitted that your offending was spontaneous. I do not accept that submission. You took a day to react to being informed by your then partner of her allegations. You requested she get you contact details and other information. When you did commence to threaten and extort your victim, you persisted for, as I said, 23 calls and 24 hours.
13 Your offending was planned, albeit through an alcoholic filter, and it was persistent. It may well be that you genuinely believe that your partner had been sexually abused by your victim. That opinion or view is totally irrelevant to sentencing. Whether your victim had or had not abused your partner is not a relevant consideration in imposing an appropriate sentence for you. You had absolutely no justification in threatening and extorting him. You are not the law. You saw an opportunity to make gain for your partner and yourself, you terrorised and threatened your victim repeatedly. He suffered both psychological and physical damage as a result. Further, as I said, you were undergoing community corrections order at the time of your offending that aggravates that offending.
14 To your credit, you have no subsequent offending, nor have you breached the intervention order your victim obtained against you on 29 December 2016. The cases of Lawrence and O'Dwyer provided to me, provide me with little assistance in sentencing you. As your counsel properly conceded in Exhibit 4, his recent submissions, those cases involved different facts and circumstances to yours. As I discussed with your counsel during your plea, I am firmly of the view that the court cannot impose a community corrections order or a combination community corrections order and a term of imprisonment in this case. Your offending is simply too serious for such a disposition.
15 Principles of general deterrence and just punishment and denunciation dictate that a significant term of imprisonment should be imposed in this case. Your offending is serious, you have relevant prior convictions, and your abuse of alcohol cannot justify your significant offending. I give full weight to principles of general deterrence. Principles of specific deterrence are less important, and I accept that if you control your abuse of alcohol you are unlikely to offend in the future. So nothing in my view, other than a term of imprisonment can properly meet the purposes of sentencing in this case, and I have reduced the sentence to reflect the mitigating factors to which I have previously referred. Would you stand up please.
16 On all three charges you are convicted. On Charge 1, the charge of use a carriage serve to harass, you are sentenced to be imprisoned for nine months. I order that sentence commence today. On Charge 2, the offence of blackmail, you are sentenced to be imprisoned for three years and three months, and on Charge 3, the charge of threat to kill, you are sentenced to be imprisoned for two years. I order that nine months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 2, the base sentence. That's a total effective term of imprisonment of four years. I order that you serve two years and six months of that sentence before being eligible for parole.
17 I declare the 26 days, not including today, has already been served by way of pre-sentence detention. I make an order pursuant to s.464ZF of the Crimes Act for the provision of a DNA sample. I am obliged to inform you that the authorities are entitled to use reasonable force to obtain that sample, so it is in your interest to cooperate. They will take a mouth swab from you. Finally, pursuant to section 6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have imposed an effective term of imprisonment of five years and six months, with a non-parole period of three years and six months.
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HIS HONOUR: Any other orders required? Would you remove Mr Deveraux, please.
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