DPP v Devey (No 2)
[2021] VSC 121
•17 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0015
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| TIMOTHY DENNIS DEVEY | Accused |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 December 2020, 9 March 2021 |
DATE OF SENTENCE: | 17 March 2021 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Devey (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 121 |
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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Single stab wound to abdomen – Prior criminal record – Disadvantaged upbringing and personality disorder – Burden of imprisonment – Sentenced to 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months – Crimes Act 1958 (Vic), s 5 – Sentencing Act 1991 (Vic), s 6AAA, s 18(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Harper | Office of Public Prosecutions |
| For the Accused | Mr J Fitzgerald | Victorian Legal Aid |
IntroductionA.
Timothy Devey, you have pleaded guilty to manslaughter. By doing so, you have accepted responsibility for killing Craig Andrew Blachford (“Blachford”) by intentionally stabbing him on 7 December 2018 without a lawful excuse to do so.
You were charged with murder on 8 December 2018. Subsequently, you agreed to plead guilty to manslaughter and a fresh indictment was issued. You were arraigned and formally pleaded guilty to 1 charge of manslaughter on 8 October 2020. At the time of the offence, the maximum penalty for this offence was 20 years imprisonment.[1] Your plea of guilty to manslaughter, on the basis that you committed an unlawful and dangerous act, and the prosecution’s acceptance of that plea, is an appropriate resolution of the matter. In effect, the prosecution has accepted that you lacked an intent to kill or cause really serious injury.
[1]Crimes Act 1958 (Vic), s 5.
The plea hearing has been split.[2] On 3 December 2020, evidence was heard in relation to a dispute of fact. At issue was whether you armed yourself before the altercation with the knife used to stab Blachford, or alternatively whether Blachford had the knife when the altercation began. On 10 December 2020, it was determined that neither the prosecution’s nor the defence’s version of events was established to the requisite standards.[3]
[2]Some expert evidence was not available until more recently.
[3]Director of Public Prosecutions v Devey (No 1) [2020] VSC 826.
The remainder of the plea was heard on 9 March 2021.
Circumstances of the offenceB.
The events in question occurred at the residence of Paul O’Gorman (“O’Gorman”) at 2/7 Cramer Street, Warrnambool (“the Unit”).
On the nights of 5 and 6 December 2018, Blachford and a woman he had been in a relationship with for several months, Marie Tangimetua (“Tangimetua”), stayed overnight at the Unit. At approximately 8.42am on 7 December 2018 you went to the Unit following a telephone conversation with O’Gorman about a $150 debt owed by you to Tangimetua. You left shortly after. O’Gorman found you nearby and together you retrieved your bicycle from the Mid City Motel and went together to purchase alcohol at a liquor outlet in Warrnambool. O’Gorman returned to the Unit on foot with your bicycle and you stayed near the liquor outlet.
Around mid-morning your friend, Matthew Wilson (“Wilson”), went to the Unit. He saw your bicycle there and witnessed a discussion between Blachford and O’Gorman in respect of your debt to Tangimetua, which appeared to make Blachford angry. Wilson left the Unit with your bicycle.
By chance, Wilson and you met in a nearby street. He returned your bicycle to you and encouraged you to return to the Unit and settle the debt.
O’Gorman and Blachford went to meet you at the Whalers Hotel, but you were not there. They returned to the Unit around 2pm.
You later rode to the Unit and began drinking with O’Gorman and Blachford. Tangimetua was asleep in a bedroom. You gave $100 to O’Gorman in part payment of your debt to Tangimetua. Later still, Joshua Mullen (“Mullen”) arrived. Another person also came and went during the course of the day, leaving around 6pm.
Then, you gave Blachford a further $50 to be passed on to Tangimetua to settle the debt. Blachford passed the money to O’Gorman for the purpose of buying more alcohol. O’Gorman and Mullen left and returned to the Unit with more drinks.
Everyone at the Unit was drinking heavily, including you. The mood became hostile and Blachford became frustrated and angry with you. You had told the others present you had once slept with a 15 year old girl. Blachford said to Mullen, “He’s a paedophile”.[4] When Mullen asked who, Blachford responded, “This cunt drinking port”. That is what you were drinking. Blachford repeatedly told you that you could not have any more alcohol and demanded that you leave, telling you to, “Fuck off home”.
[4]Your counsel explained that he had been instructed that you had been speaking about an early sexual encounter of yours when you were also young and that what you had said had been misunderstood.
At this point, you said you were leaving and put your bicycle helmet on your head. Blachford again became angry with you, now in relation to money he believed was still owed to Tangimetua. Blachford demanded a further $100 for Tangimetua and said to you, “You have to pay it now”. While you were still seated, and wearing your bike helmet, Blachford punched you on top of your helmet.
You then walked through 1 kitchen door and out the other into the hallway. As you went to leave Blachford grabbed at your bag. A scuffle followed. On the facts before the court, it was not clear whether you had the knife as you approached the front door or whether Blachford had the knife and you wrested it from him.[5] Accordingly, the fact that 1 of you must have had the knife first is neither an aggravating nor a mitigating circumstance.
[5]Director of Public Prosecutions v Devey (No 1) [2020] VSC 826, [32].
You stabbed him once in an upward motion towards his right side. The knife entered the bottom of the liver, extended upwards through the liver and pierced the diaphragm at a depth of 17 centimetres. Blachford walked backwards while holding his stomach and said, “I’ve been stabbed” before collapsing.
You immediately fled the Unit by bicycle.
At 8.26pm an ambulance was called to the Unit and those present provided immediate assistance as directed by the 000 operator. The ambulance arrived less than 10 minutes later. Blachford was observed to have a large vertical incision above his navel and his bowel was exposed. He was taken to the Warrnambool Hospital.
Blachford was immediately transferred to theatre and underwent 2 operations, however his injuries were determined to be non-survivable. He was declared deceased at 3.10am on 8 December 2018.
Personal circumstancesC.
You are 53 years of age, having been born on 29 September 1967. You have 2 brothers and 1 sister. You grew up in Belmont. Your childhood was marked by significant violence. It was directed towards you, your siblings and your mother by your father. Your father broke your jaw on 4 occasions. Your father had been a very heavy drinker. He stopped when you were approximately 4 years old, after your mother told him she would leave permanently if he persisted drinking. His drinking stopped however his violence did not.
You have recounted that you were sexually abused by a local priest when you were about 11 years old. You did not report this at the time. You left home at the age of 13 after spending 2 months in hospital as a result of a broken jaw and broken ribs at the hand of your father. You described yourself as a “bad student” and a “lone wolf”, often failing to attend school. You were expelled during year 9 and never returned to school.
At 15 years of age, you started an apprenticeship as a chef. You successfully completed the apprenticeship and worked in several restaurants, including in Geelong and Torquay, and in Queensland. When you were about 20, you formed a relationship for a brief time with the daughter of a good friend of your father. Your father was furious about this and assaulted you, breaking your jaw. After you completed your apprenticeship you travelled and worked in Indonesia and Canada, with another woman with whom you were in a romantic relationship. You then moved to Lorne and managed a restaurant together. The breakdown of that romantic relationship after your partner’s infidelity had a devastating impact on you. You attempted suicide only to wake up in hospital. You described your “whole world falling apart”.
You ceased working and commenced using cannabis and alcohol more heavily and also used LSD[6] and cocaine. You met a number of people who were importing drugs to Australia from the United States and became involved. You were convicted and sentenced to 15 months in prison. Your mother died of cancer in 1994 while you were on remand. Your father blamed stress about your incarceration for precipitating your mother’s death and you have had limited contact with your family since the funeral.
[6]Lysergic acid diethylamide.
After your release from prison you moved to Geelong and worked in a shop selling smoking paraphernalia. You became involved in hydroponics and in the cultivation of cannabis and were convicted in relation to this, receiving a suspended term of imprisonment and a community based order. You continued to use alcohol and cannabis heavily. You spent some time in Adelaide, but left after you were badly assaulted. You then lived in the wilderness near the South Australian and Victorian border for several years before returning to Victoria in around 2010.
After short stays in Geelong and the Ballarat region, you moved to Warrnambool. Around this time, you began suffering from peripheral neuropathy and were homeless while you waited for public housing. You were provided with accommodation, but fell while working on the roof of the house and suffered broken legs and hips. After being bedridden for several months, you required a wheelchair for a period of time. You continued to use alcohol and cannabis heavily. More recently, you gained access to a National Disability Insurance Scheme package to support you.
You have a history of alcohol and drug abuse. You began drinking at 10 years old and have had a pattern of extremely heavy drinking over many years.[7] You have also been a heavy cannabis user.[8]
[7]A medical report prepared in mid-2017 referred to your chronic excessive alcohol ingestion, recording that historically you consumed between 3 and 10 litres of alcohol a day.
[8]Additional details of the accused’s life history were included in the defence submissions and Dr Pandurangi’s report dated 14 February 2021: see par 32 below. Further, defence counsel acknowledged reservations about your memory and ability to recall events accurately.
You have very few assets. You have discovered Buddhism and the practice of meditation while in custody, which you enjoy. You have attempted to reconnect with your siblings but they have not responded to your communications. You correspond with a female friend in Warrnambool who has offered you a place to live when you are released from custody. You expect to receive ongoing support from the National Disability Insurance Scheme upon release and intend to continue to produce artwork which you propose to sell at markets.
Criminal recordD.
You have a significant number of prior criminal convictions spanning a period from 1986. While some of the offences could properly be described as relatively minor, including being drunk in a public place, the offences range in seriousness. In relation to the more serious offences, in 1994, as already touched upon, you were sentenced to 15 months imprisonment for the importation of prohibited imports into Australia. You were convicted of reckless conduct endangering serious injury in 1998 and 2015, and of making threats to kill on various occasions.
Nature and gravity of offenceE.
Your counsel submitted, and the prosecution accepted, that in all the circumstances this was a lower-end example of the offence of manslaughter. While such indications are of considerable assistance, obviously each case turns on its own particular facts.
Your counsel noted that that the offence was committed in the context of an atmosphere of hostility that developed during an afternoon of you, Blachford and others drinking together. Further, your counsel referred to the fact that the offence occurred as you were intending finally to leave the Unit. It was submitted that if you had been permitted to leave, it is likely the offence would not have taken place. Furthermore, it was submitted that your offence was not pre-planned or pre-meditated.
None of these matters change the fact that, as a result of your conduct, someone’s life was taken when he died from a very deep stab wound that you inflicted.
Moral culpability and general deterrenceF.
With reference to cases concerning mental impairment,[9] your counsel submitted that your moral culpability should be reduced in light of your diagnosed personality disorder.
[9]Brown v The Queen [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA).
Your counsel relied on the opinion of Dr Prashant Pandurangi (“Pandurangi”).[10] He stated that as a result of trauma, neglect and disadvantage in your formative years you did not form secure attachment with your caregivers, and consequently the foundations of normal personality development were not well established. Pandurangi described persistent, pervasive and problematic difficulties with a profound lack of sense of self and self-direction. He spoke in terms of a lack of understanding the perspective of others, relationship difficulties and an inability to resolve conflicts. Pandurangi concluded that you would be diagnosable with a moderate personality disorder[11] with a prominent detachment[12] and disinhibition[13] pattern.
[10]Forensic psychiatric report dated 14 February 2021. Amongst other things, Pandurangi is a qualified medical practitioner, a fellow of the Royal Australian and New Zealand College of Psychiatrists and a consultant psychiatrist at the Victorian Institute of Forensic Mental Health.
[11]International Classification of Diseases 11th Revision ICD-11 6D10.1.
[12]The core feature of which is a pervasive pattern of social detachment (concerning friendships or intimate relationships) and emotional detachment (namely, aloofness and limited emotional experience).
[13]The characteristic feature is that of impulsivity and lack of planning and consequential thinking.
Pandurangi assessed the impact of your personality disorder on your daily functioning as being at the “severe” level.[14] Pandurangi referred to a previous diagnosis of post-traumatic stress disorder and considered that you may have experienced some symptoms in that regard. He said that you currently suffer from recurrent depressive disorder, of moderate severity, without psychotic symptoms. Pandurangi was of the view that you do not suffer from bipolar mood disorder and there was no indication that you suffer from any enduring psychotic illness such as schizophrenia. Pandurangi considered that you suffer from polysubstance use disorder, predominantly in relation to alcohol and cannabis, but noted that you were currently in remission in a controlled environment.
[14]This is the second most severe of 5 categories from “little or no impairment” to “extreme”.
In relation to the offence, Pandurangi stated it was not possible to provide a single isolated cause of the offending. He considered that the offending was the result of an interaction between a range of influences and chance events. In his opinion, your inability to extricate yourself from or manage the difficult situation in the lead up to the offence was reflective of several facets of your underlying personality dysfunction, including poor decision making, a general mistrust of others and inability to manage your own emotions. In Pandurangi’s view this amounted to a necessary factor, but was not sufficient to explain the offending.
Your counsel submitted that the personality disorder was a mental impairment that contributed to your offending. Further, it was submitted that Pandurangi’s opinion suggested that had you not suffered from your personality disorder, the offence may not have occurred. Your counsel submitted that as a consequence of these factors your sentence ought to be moderated to reflect your lower moral culpability and that you are not a good vehicle for general deterrence.
The prosecution submitted that any moderation to moral culpability and general deterrence on the basis of your personality disorder should be modest. The prosecution noted the opinion that your personality disorder was not sufficient to explain the offending. In addition, the prosecution pointed to the further opinion that the offending arose from the complex interactions between your personality disorder, your state of mind at the time and the disinhibiting effects of alcohol. As a result, the prosecution submitted it would be improper to give your personality disorder more weight than the other factors.
In relation to general deterrence, the principles in R v Verdins require sensible moderation of general deterrence. Further, if an offender acts with knowledge of what she or he is doing and with knowledge of the gravity of her or his actions, the moderation need not be great.[15] In light of Pandurangi’s assessment of the contribution of your personality disorder to your offending, only a modest moderation to general deterrence is appropriate.
[15](2007) 16 VR 269, 273 [17], 273-274 [20] (Maxwell P, Buchanan and Vincent JJA), quoting R v Wright (1997) 93 A Crim R 48, 51.1 (Hunt CJ at CL).
Returning to moral culpability, Pandurangi was of the opinion that your inability to extricate yourself from the situation in the lead up to the offence was a reflection of several facets of your personality disorder. This is evidence that your personality disorder impaired your ability to exercise appropriate judgment and to make calm and rational choices and so reduces your moral culpability to a modest extent.[16]
Prospects of rehabilitation and other sentencing factorsG.
[16]R v Verdins (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA). As set out above, the position of a modest reduction was adopted by the prosecution both in relation to general deterrence and moral culpability. While your counsel did not embrace the use of the word “modest”, he accepted that the position taken by the prosecution was not far off the mark.
Pandurangi assessed that your prospects of psychosocial rehabilitation would depend on your engagement in treatments offered and desisting from use of alcohol. In his view, it was not possible to make meaningful estimates about the likelihood of similar re-offending.
Your prospects of rehabilitation are far from clear given your long history of drug and alcohol abuse and your polysubstance use disorder. Your counsel frankly acknowledged that the court should be guarded in relation to your prospects. He correctly recognised that there was a real risk upon your release of a resumption of a life heavily influenced by alcohol and drugs. However, he submitted you have the necessary support around you to obtain the help you need, including the prospect of substantial support when your term of imprisonment is completed.[17] Ultimately, he described your prospects as hopeful but guarded. The prosecution submitted your prospects were guarded at best.
[17]Reference was made to your status with the National Disability Insurance Scheme and the prospect of having somewhere to live on your release.
It is clear on the evidence that there must be a great deal of circumspection in relation to your prospects of rehabilitation in light of your long history of alcohol and drug abuse, coupled with your ongoing mental health issues.
Your counsel submitted that specific deterrence had less application than it otherwise might for someone with the same prior history of criminal convictions. He also submitted that there was no evidence that the sentence of imprisonment will have a marked deterrent effect.
The prosecution submitted that denunciation plays a significant role in the sentencing exercise, as does just punishment and community protection. In relation to the last of these matters, the prosecution submitted that this was dependent on your rehabilitation and ability to desist from drugs and alcohol. The prosecution further submitted that specific deterrence is a relevant factor given your admitted prior history.
Your prospects for rehabilitation, just punishment and community protection have been taken into account. As has the need for specific deterrence, in light of both your prior criminal history and the ongoing need for you to commit to treatment.
You pleaded guilty on a contested factual basis to the lesser charge of manslaughter. Your counsel submitted, and the prosecution accepted, that you were entitled to a discount in sentence for the utilitarian benefit resulting from that plea.
With reference to limbs 5 and 6 in R v Verdins,[18] your counsel pointed to Pandurangi’s opinion that your physical and mental health conditions have clearly rendered incarceration more onerous compared to others who do not suffer from such conditions. Further, Pandurangi’s view was that there was a risk that your mental health would deteriorate during incarceration, especially during periods of stress, which would increase the risk of self-harm or suicide. Pandurangi noted that you have been assessed to be at risk of suicide or self-harm several times while on remand, in December 2018, and January and March 2019.
[18](2007) 16 VR 269, 269 [32] (Maxwell P, Buchanan and Vincent JJA).
The prosecution conceded that limbs 5 and 6 of R v Verdins are enlivened by your physical and mental ailments and that your time in custody will likely be more burdensome than if you did not suffer from these conditions.[19]
[19]Ibid. I note that, although the prosecution submissions referred to both physical and mental ailments, the principles in R v Verdins were directed to impaired mental functioning.
The serious risk of imprisonment having a significant adverse effect on your mental health is a mitigating factor to be taken into account.[20] Applying the principles in R v Verdins, the fact that imprisonment may weigh more heavily on you than a person without your mental health conditions has been taken into consideration.[21]
[20]Ibid, 276 [29]-[30].
[21]Ibid, 276 [28].
In relation to physical health, your counsel submitted that your imprisonment was made more burdensome due to your peripheral neuropathy and consequential mobility difficulties. You have been diagnosed with sensory peripheral neuropathy. In 2017, tests showed mild cerebral atrophy, some white matter changes and normal cord signal, but a lot of degenerative disease. Your counsel reported that you suffer pain and mobility problems as a result of your peripheral neuropathy and require a pusher to walk short distances and a wheelchair for longer distances.
You were also found to have hyper-inflated lung fields consistent with airways disease and fatty infiltration of the liver, consistent with excessive alcohol ingestion. During your time in prison, in January 2019, a medical officer noted your physical health issues including chronic pain, bilateral ear exostosis[22] and bilateral eye pain.
[22]You were placed on a waiting list for surgery in relation to this in 2017. This matter is still to be attended to.
In prison you have a carer, another prisoner, to help you with day to day care. Further, your counsel reported that you have been in protection for the last year as other prisoners threatened you, seeking access to your prescription medication. Furthermore, you were recently injured by an accidental fall from your wheelchair and were briefly hospitalised. You report that you continue to suffer pain as a result of this event. Moreover, you also report that your physical health condition has worsened 10 times since you were detained.
The fact that your physical health issues will make imprisonment a greater burden than for a person of average health is a mitigating factor to be taken into account.[23]
[23]R v Van Boxtel (2005) 11 VR 258, 268 [33] (Callaway JA, with whom Ormiston and Charles JJA agreed). See also Smith v The Queen [2018] VSCA 208, [33]-[35] (Whelan and Kyrou JJA).
I have been provided with a number of possibly comparable manslaughter cases which I have considered.
Victim impact statementsH.
Victim impact statements were tendered on behalf of Blachford’s daughters, Camdyn Braniff and Temily Blachford, as well as Judith Blachford, Blachford’s sister.
Camdyn expressed sadness and disappointment at her father’s death because, although they were not close, she had hoped that that could change over time. She also expressed feeling more worried and concerned for her own safety as a result of her dad being killed.
Temily recounted how her heart ripped apart when she was told by her crying mother about what happened to her dad and that she would never forget the moment. She stated that losing her father has caused her a pain she will never be able to describe. She stated that, due to the effects on her of his death, a 5 year relationship she was then in fell apart, she left university and put her life on hold. She said she was reminded of her dad every day when she looks in the mirror.
Blachford’s sister Judith described their childhood and being a second “mum” to him. She spoke of the hurt, feeling numb and her life feeling empty after learning of Blachford’s death, how Blachford’s death affected their mother, and her commitment to attend every court proceeding as her last act of love for Blachford.
The contents of the victim impact statements have been taken into account.
Sentence
Timothy Devey, taking each of the matters referred to above into account, and balancing the factors as best I am able, on the count of manslaughter you are convicted and sentenced to be imprisoned for a period of 7 years and six months. I fix a non-parole period of 5 years and six months.
Section 6AAA of the Sentencing Act1991 (Vic) requires me to state the sentence I would have given you if you had not pleaded guilty. But for your plea of guilty, I would have imposed a sentence of 9 years and six months with a non-parole period of 7 years.
Pursuant to section 18(4) of the Sentencing Act, I declare that 830 days of imprisonment, not including today, be reckoned as a period of imprisonment already served. I shall direct that declaration to be noted on the records of the court.
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