Director of Public Prosecutions v Devries

[2014] VCC 1611

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01176

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL DEVRIES

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 September 2014
CASE MAY BE CITED AS:	DPP v Devries
MEDIUM NEUTRAL CITATION:	[2014] VCC 1611

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French	Office of Public Prosecutions
For the Accused	Ms V. Parbhoo	Victoria Legal Aid

HIS HONOUR:

1You may be seated, Mr Devries.  At a particular time, I will ask you to stand when I announce the sentence.

2Yet again, the courts are called on to deal with a burst of almost inexplicable violence where the underlying cause is the drug ice.  Yet again, a man with years of stable employment and ordinary family life, finds himself facing the real risk of time in gaol because of his addiction to ice.

3Paul Devries, you are a skilled tradesman and have been employed for over 25 years as a painter.  You had positions of responsibility and a good income.  You and your first wife had raised a family.  By 2005 you were in a stable second relationship, again raising a family.

4

I have heard and read very impressive evidence from your partner,

Ms Walters.  She wrote and spoke of your good qualities, your dedication to your new family, and to her.  She also wrote and told me of how you deteriorated, became deceptive, irresponsible and wasteful of money meant for the family.  I will return to her evidence later dealing with how you have now woken up to yourself and have resumed your previous lawful and contributing lifestyle.

5In 2012 you took to using ice and, predictably, things went very badly thereafter.  Your employers could no longer rely on you, and you became unemployed.  You progressively got into more and more debt.  You borrowed a significant amount, $18,000, from an old friend, Mr Walker, who you say you shared ice with. 

6Not surprisingly, Mr Walker was concerned to have the debt repaid.  Ultimately your response to his request for repayment was a bizarre and violent attack upon him in his own home.  You had, in the weeks leading up to your crime, become paranoid that he may do something to recover his debt.

7On 7 April, 2014, you rode your bike to his house.  You had a frightening mask as a disguise.  You took cable ties, it seems to disable him, though your purposes were confused and unclear.  You also had duct tape.

8When you got to his house and he came to the front door you immediately attacked him, punching him and tackling him to the ground.  He fought back, and ultimately his calls for help brought his neighbour to the scene to help out.  They got the better of you.  Mr Walters grabbed a saw, and in the struggle you received a cut to the back of your head.  Your mask came off and Mr Walker could see, to his utter surprise, that his attacker was his friend of 20 years.  He asked what you were doing, you said you were desperate.

9You were able to get away but Mr Walker, knowing where you lived, called the police and you were quickly arrested.  Your first response to the police played down what you had done, but quickly you faced up to the reality of things, confessed and indicated that you would plead guilty to the offence.  You have maintained this approach, and accordingly you will receive a significant benefit for your plea of guilty and its very early timing.

10I take the plea to be a sign of remorse.  It is not the only evidence of remorse, you expressed that in a letter to the court.  You have done likewise to your partner.  You are deeply ashamed and recognise all that you have put at risk.

11You are 47.  Your upbringing in the western suburbs was unremarkable.  You got into a little trouble as a young man, but the previous offending is well over 20 years ago and of a different and significantly less serious kind.

12As I have said, you settled after your early 20s into a hard-working family man.  Your work history is to your credit, as is your lack of prior convictions for the last two-and-a-half decades. 

13Subsequent to your arrest and acceptance of reasonability, you have significantly turned things around.  You have regained solid work as a painter.  You have prospects of continuing in this profession and prospering.  You have, once again, become the man your partner knew and loved.  You are again contributing to the lives of the children.  Your income and support are pivotal, as your partner is currently studying in the field of aged care and is not eligible for social security benefits, as she is a citizen of New Zealand.

14The family currently live in a cabin at a caravan park.  This arose because your previous expensive drug addiction saw you all evicted from rental accommodation.  Family circumstances are likely to significantly deteriorate if you are incarcerated.  This would be a heavy burden on you in custody.

15You have abandoned the use of ice.  This is very important.  You now have been able to consolidate your rehabilitation and your prospects for permanent reform are very strong. 

16The prosecution argued that a term of imprisonment was the only just and appropriate penalty.  Your counsel ultimately urged for a penalty that would enable you to continue to support your family or, if not immediately, then after a short term of imprisonment, combined with a community corrections order.

17I am mindful of the key sentencing considerations of general deterrence and denunciation.  They are weighty matters.  In my view, the only other sentencing consideration of real importance is that I endeavour to establish conditions that facilitate your rehabilitation.

18In recent times, the Parliament of this state has significantly recast the sentencing regime.  In creating the new, expanded, and flexible penalty of the community corrections order, the Attorney-General, in introducing that regime into parliament, spoke in parliament of the purposes of such penalties.  In general terms, what was said was that the sentencing regime was intended to give sentencing judges capacity to impose flexible and targeted penalties directed at permanent reform.  Community corrections orders were not meant to be seen as a soft option, but were seen as having advantages over imprisonment by promoting the offenders rehabilitation and the preservation of family and community ties.  All this further promotes the Sentencing Act's broader purpose of preventing crime and promoting respect for the law.

19The Chief Justice of this state, in her judgment in the DPP v Edwards said, and I quote, "While a CCO is a significantly less severe sentence than a custodial sentence, it should not be seen as a soft option.  A CCO imposes significant burdens on the offender".  Her Honour then outlined the mandatory conditions and some of the program conditions, as well as what would likely happen if an offender breached an order.

20In latter times, the Attorney-General, again in speaking about the purposes behind the abolition of suspended sentences in this state, spoke of community corrections orders being sentences that properly can be seen as replacing suspended sentences that might otherwise have been imposed by the courts in appropriate circumstances.

21Importantly, community corrections orders can be for significant periods, and have onerous punishment conditions, and rehabilitative treatment conditions.  Lengthy community corrections orders with significant unpaid work and treatment conditions are truly no soft option.

22I am also mindful of the Court of Appeal decision in Hogarth, but as the Court of Appeal has pointed out subsequently, Hogarth is not, and should never be read as, mandating incarceration for confrontational aggravated burglaries.  The point of principle in Hogarth relating to current sentencing practices, is much more subtle and nuanced than that.  As was said by the Court of Appeal in R v Suckling, that error can occur if sentencing judges consider themselves bound by the decision in Hogarth to impose significant terms of imprisonment, and such an approach is not authorised and can lead, as it appeared to in Suckling, to the forbidden two-tiered sentencing approach.

23What is always important, is to sentence according to the unique facts and circumstances of the case, instinctively synthesising all relevant matters both for and against the accused.  Importantly, the matters in favour of the accused which mitigate, cannot be given mere lip service because of the seriousness in the calendar of the offence of confrontational aggravated burglary.

24I have considered current sentencing practices post Hogarth, including a number of serious aggravated burglaries, in my view more serious than this one, where weapons were involved, where community corrections order sentences have been imposed, and those sentences have not attracted an appeal by the Director of Public Prosecutions asserting manifest inadequacy.

25

All the circumstances of this aggravated burglary committed by you,

Mr Devries, place it in the lower end of the spectrum.  In my view, the circumstances of this aggravated burglary, and the circumstances of you and your future prospects call for punishment, but not punishment of the last resort, being gaol.  Your rehabilitation is not being over-emphasised, but gaol will not facilitate your rehabilitation, probably the contrary is the more likely outcome.  Denunciation and general deterrence is still sufficiently achieved by a stern and lengthy community corrections order.

26Can you please stand, Mr Devries.  For committing the crime of aggravated burglary, breaking into your friend's place with the intent to assault him, you are convicted and placed on a four-year community corrections order.  There are mandatory conditions that apply to that Community corrections order which I will outline to you.      There are program conditions that are imposed specifically for you.  They are that you are to perform 350 hours of unpaid work within the four year period, you are to be under the supervision of the community corrections officers, and you are to undergo assessment and treatment as directed by the community corrections officers for drug addiction and abuse, such treatment that you undergo can be part of unpaid work.

27In respect of the summary offences that were put before this court with your consent, that is the unlawful assault and the carrying of the disguise, you are convicted and an aggregate fine imposed upon you of $750.  Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of three years with a non-parole period of two years.

28Are there any other orders that I have to deal with?

29MS FRENCH:  There is a disposal order, Your Honour.

30HIS HONOUR:  Thank you, you can be seated, Mr Devries.  There is a disposal order relating to a range of things connected to the crime and I intend to make that order.

31MS FRENCH:  Your Honour, if I may just clarify, the summary charges, have they been dealt with by way of an aggregate fine of $750, Your Honour?

32HIS HONOUR:  Yes, that is exactly what I said, yes.

33MS FRENCH:  Thank you.

34HIS HONOUR:  There is nothing wrong with that, is there, technically?

35MS FRENCH:  I do not believe so, no, I was just clarifying, thank you.

36HIS HONOUR:  You are not debating the amount or the fact of the fine, that it can be aggregated can it not?

37MS FRENCH:  If Your Honour would just allow me to double-check.  I believe it can, I just wanted to make sure that was what Your Honour said, and to double-check the Act, if I may.

38HIS HONOUR:  Mr Devries, a document will be produced.  I will have to, then, outline the various conditions so you understand them.  If you are prepared to consent to the making of that order, then sign it.

39ME DEVRIES:  Yes, Your Honour.

40HIS HONOUR:  Just remain where you are.

41MS FRENCH:  Your Honour, I cannot see any problem with what Your Honour has done in relation to Charges 2 and 3, thank you.

42HIS HONOUR:  Well, the uplifted charges that were not on the indictment.

43MS FRENCH:  That is right, Your Honour, the two summary charges.

44HIS HONOUR:  Mr Devries, can you please stand.  The conditions that apply to all those that are placed on a community corrections order, and thus apply to you, are these, and please listen carefully to the first one.

45You must not commit another offence for which you could be imprisoned during the time that this order is enforced.  That is four years.  Now, the way through it, of course, is commit no further offences for the rest of your life, but if you do so in the next four years and it is an offence punishable by imprisonment, and almost every offence that you can think of is punishable by imprisonment, then you will come back before me and I will be reminded of my naivety in giving you a chance. And you will not get another, simple as that.

46Now, you must comply with any obligation or requirement under the regulations of the Sentencing Act.  I am told that means that the Office of Corrections will take your photograph so they know who you are.  You have to comply with it, and all the rest of it.

47You must report to and receive visits from the Office of Corrections.

48You must report to the Community Corrections Centre - which I will identify shortly - within two clear working days of this order starting.  Go as soon as possible.  It is the Sunshine Community Correctional Service at 10 Foundry Road, Sunshine.

49OFFENDER:  Your Honour, I have been twice already for appointments.

50HIS HONOUR:  Good.  Well, that is something that I do not know about but, anyway, there it is.  You must let the Community Corrections Officer know within two clear working days if you have changed your address or your job.  That includes if you move from what job you are doing now to another.  I think you should be quite open about where you are currently working and, likewise, if you change to another site.

51You must not leave Victoria without first getting permission to do so from the Office of Corrections.  That is for a trip to Wagga, Eden, Robe, just for the weekend, you have got to tell them you are going.

52You must obey all lawful instructions and directions from the Office of Corrections.  Their instructions and directions will be lawful unless it is patently obvious.  Do what they say.  These conditions are not voluntary, they are mandatory, and I will now move to those that apply specifically to you, and emphasise that this is mandatory.

53You must perform 350 hours of unpaid community work over four years as directed by the Regional Manager.  Now, if you fail to turn up on time, stay for as long as required, and do each and every one of the 350 hours then, ultimately, you will come back before me and there will be no second chance.

54You may come across some people doing unpaid community work and not as dedicated to their reform as you seem to be.  You may come across people whose interest in getting off ice is minimal, despite the fact that the Court is giving them a chance.  You must resist.  You must be a leader amongst those young people, by and large.  You said in your letter that you were going to use your experience.  Well, no one is compelling you to do so, but, by your example of doing each and every day properly that you are required to do, might have that effect.

55You must be under the supervision of a Community Corrections Officer for four years.  Now, that supervision may require them to see you.  You cannot say that it is inconvenient, you have got your kids' rugby final, on or anything of that kind.

56You must undergo assessment and treatment, including testing for drug abuse and dependency, as directed by the regional manager, which may include urine tests and all the rest of it, to see that you are up to the mark.

57If you, as you probably will - sadly in our community in amongst otherwise good people who are working on building sites and the like - come across ice and you are in the least bit tempted, just consider as you smoke, or take, or whatever, that you are just opening the door of the gaol and putting yourself in, and your children, you will not be there for them, things will deteriorate.  No one is the same after they have been to prison, no one.

58Those are your requirements, Mr Devries.  If you sign that, consenting that you will do this order, each and every aspect of it, then that will bring the matter to an end.  Just leave the dock and come up and sign this document at the table with your lawyer.

59MR DEVRIES:  Thank you.

60(Community-based order signed.)

61HIS HONOUR:  Mr Devries, just above your signature is the words, underlined, bold, capitals, "I understand the effect and the conditions of this order and consent to it being made".  You will be reminded of that if you do not do this.  This is one of the longest orders this court has imposed, as I understand, or in that vicinity.  We were previously prevented from making orders of four years, or anything above three years.  The amount of work that you have to do is a very significant amount.  So you can understand how close you were.

62Thank you.  Is there anything further required?

63MS:  PARBHOO:  No, Your Honour.

64MS FRENCH:  No, Your Honour.

65HIS HONOUR:  I thank counsel for their assistance and the informant for his attendance and interest in this case.

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