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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Devey (No 2)

Details

AGLC: Director of Public Prosecutions v Devey (No 2) [2021] VSC 121
Case: [2021] VSC 121
Decision Date: 17 March 2021

CaseChat Overview and Summary

The defendant, Devey, faced the Director of Public Prosecutions in this case. The dispute centred on the appropriate sentence for a manslaughter conviction by an unlawful and dangerous act. The Court of Appeal for the State of Victoria presided over the case. The legal issues before the court involved determining the appropriate punishment for a crime that resulted in death due to a single stab wound to the abdomen, considering the defendant's prior criminal history, disadvantaged upbringing, and personality disorder. The court also needed to balance the burden of imprisonment on the defendant with the need to protect society.

The court considered the nature and circumstances of the offence, the defendant's background, and the principles of sentencing outlined in the Sentencing Act 1991 (Vic). The court found that the single stab wound caused the victim's death, making it a particularly heinous crime. However, the court also acknowledged the defendant's disadvantaged upbringing and personality disorder, which were considered mitigating factors. The court found that a significant sentence was necessary to reflect the seriousness of the offence and to deter others from engaging in similar conduct. Ultimately, the court sentenced Devey to 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months.

The court emphasised the need to balance the defendant's personal circumstances with the need to protect society and maintain public confidence in the criminal justice system. The court considered the defendant's prior criminal history and the circumstances of the offence in arriving at the sentence. The court also noted that the defendant had shown remorse and had taken steps to address his personality disorder while in custody. The court concluded that the sentence imposed was appropriate and reflected the seriousness of the offence, while also taking into account the defendant's personal circumstances.

The final orders of the court were that Devey be sentenced to 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months. The court also ordered that Devey be credited with 985 days for time spent on remand. The court's decision provides guidance on the appropriate sentencing approach for cases involving manslaughter by an unlawful and dangerous act, taking into account the defendant's personal circumstances and the need to protect society.

Orders