Eaves v Tasmania

[2010] TASCCA 20

[2010] TASCCA 20

COURT:           SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Eaves v Tasmania  [2010] TASCCA 20

PARTIES:  EAVES, Dallas John
  v
  TASMANIA, STATE OF

FILE NO:  569/2010
DELIVERED ON:  15 December 2010
DELIVERED AT:  Hobart
HEARING DATE:  11 November 2010
JUDGMENT OF:  Evans, Blow and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Crimes committed in prison – Assaulting correctional officer, damage to property, and setting fire to property in cell.

Power v R (1974) 131 CLR 623, Bugmy v R (1990) 169 CLR 525, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:  G Barns and T Kovacic

Respondent:  A Shand
Solicitors:
           Appellant:  No instructing solicitor
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 20
Number of paragraphs:  18

Serial No 20/2010
File No CCA 569/2010

DALLAS JOHN EAVES v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
PORTER J
15 December 2010

Order of the Court

Appeal dismissed.

Serial No 20/2010

File No CCA 569/2010

DALLAS JOHN EAVES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
15 December 2010

1. I agree with the reasons of Blow J and would also dismiss the appeal.

File No CCA 569/2010

DALLAS JOHN EAVES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J

15 December 2010

1. This is a sentencing appeal.  The appellant pleaded guilty to three charges relating to two incidents that occurred when he was an inmate at the prison at Risdon.  In relation to the first incident, on 13 December 2009, he pleaded guilty to charges of assault and unlawfully injuring property.  In relation to the second incident, on 3 March 2010, he pleaded guilty to a charge of unlawfully setting fire to property.  In relation to the three charges, Tennent J imposed a global sentence of 2½ years' imprisonment, and ordered that the appellant not be eligible for parole until he had served 22 months of that sentence.  He contends that both the head sentence and the non-parole period were manifestly excessive. 

1. In determining this appeal, this Court must apply the principles expounded by Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR 499 at 504 – 505 where their Honours said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. Counsel for the appellant did not submit that the learned sentencing judge had made any identifiable error of fact or law, but in substance contended that her orders were unreasonable and plainly unjust.

1. In the first of the two relevant incidents, two correctional officers were assaulted by other prisoners before the appellant became involved.  One prisoner punched an officer to the face.  A second prisoner punched a second officer repeatedly to the face and head.  That officer fell to the ground, whereupon his assailant kicked him and punched him to the face and head.  It was at that stage that the appellant decided to join in.  While the second correctional officer was still on his knees, the appellant crouched over him and punched him three times to the head and face with both fists.  Other correctional officers arrived, and the victim was able to get away. 

1. The appellant and several other inmates ran to the tennis court area and armed themselves with various items.  The appellant armed himself with a plastic cricket bat. Correctional staff withdrew from the area for their own safety.  The appellant and his companions then entered the education building through a window.  In order to gain entry they removed a grille and smashed the window.  Once inside they damaged office equipment and destroyed six desktop computers, four laptop computers, and two large photocopiers.  They lit several small fires.  The fires caused little damage, but they activated the fire sprinklers, and some water damage resulted. The appellant climbed out of a window onto the roof and attempted to cover a security camera with an item of clothing.  Later he set fire to his T-shirt, placed it on a window sill, and moved a blind to a position above it, but the T-shirt appeared to fall inside the window, and he walked away. 

1. The officer whom the appellant assaulted suffered a fractured eye socket and swelling and bruising to his face.  He had to undergo surgery twice in relation to the fracture.  That involved the insertion of two plates. He has had problems with pain, nausea, his vision, weight gain, and psychological symptoms. The range of movement of his left eye is impaired, and that could be permanent.  The cost of repairing the damaged building and replacing the destroyed contents came to a little over $57,000. As a result of the incident, the prison went into lockdown, and other costs flowed from that.  The total cost of the incident to the Tasmanian Government was $116,200.

1. The second incident was less serious.  On the day before he was due to be released from prison, the appellant set fire to the mattress in his cell.  Prison officers put the fire out.  Repairing and cleaning the cell cost a little over $4,000.  He started the fire because of grievances with prison staff.  Some prison officers suspected that he had been making home brew.  He considered that they would not listen to his explanations, and became upset about that.

1. At all material times, the appellant was 22 years old. He has a large number of prior convictions, commencing when he was 15 years old.  Without counting wholly suspended sentences, there had been eight occasions when he was sentenced to imprisonment prior to his sentencing for these crimes.  He had been out of prison for a little over three months before pleading guilty to them and being remanded in custody.

1. The following mitigating factors were relevant:

·   The appellant was only 22 years old.

·   He did not instigate the violence or the property damage during the first incident.

·   He pleaded guilty. The plea of guilty in relation to the second incident was entered in the Magistrates Court at an early stage.  However, the Crown had a strong case in relation to each incident.

·   His personal circumstances were unfortunate.  His partner was pregnant.  He was unemployed. His upbringing was dysfunctional. There was a 50 per cent chance that he would develop the symptoms of Huntington's disease. He suffered from anxiety, and took medication for that condition.

·   In the few months since his last release from prison he had participated in a training program relating to horticulture, and worked at a local vineyard. Workers involved in the program provided positive references.  He had done well in his course, and wanted to undertake further training and get work.

·   He was remorseful, and conscious that his conduct was likely to result in him not being present for the birth of his first child.

1. However, it is significant that the appellant's crimes involved breaches of prison discipline. The first incident involved very serious breaches, including a vicious, unprovoked, cowardly, sustained assault upon a correctional officer acting in the course of his duty who was not in a position to defend himself adequately. The only appropriate penalty was a significant sentence of imprisonment.

1. Counsel referred us to a number of cases in which offenders were sentenced for crimes committed in the prison in recent years, and to the sentencing statistics published by Professor Warner in Sentencing In Tasmania, 2^nd ed, 2002.  Information as to other specific cases tends to be of little value because each case depends on its own facts, particularly as to the nature of the harm done, the extent of the involvement of the offender, and the offender's prior convictions.  Having regard to all the circumstances, particularly the seriousness of the assault and the amount of damage done during the first incident, I am not persuaded that the head sentence of 2½ years' imprisonment was manifestly excessive.  I think it was quite appropriate.

1. In his oral submissions on behalf of the appellant, Mr Barns tended to concentrate on the order fixing a 22-month non-parole period.  That is a little under three quarters of the head sentence.  The shortest possible non-parole period is half of the head sentence: Sentencing Act 1997, s17(3).

1. Mr Barns referred to a number of authorities as to the significance of an offender's prospects of rehabilitation in relation to the fixing of a non-parole period or its equivalent.  In Bugmy v R (1990) 169 CLR 525, at 532, Mason CJ and McHugh J said this:

"A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members.  Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak.  Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others.  But the nature  of the offence does not assume the importance which it has when the head sentence is determined.  There, the sentence must be proportionate to the gravity of the offence …, whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole.  In one sense, that portion must itself bear a proportionate relation to the crime.  Generally speaking, the perceived prospects of rehabilitation will make a significant difference.  Among other things, those prospects will affect what is required by way of protection of the community.  Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and a recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment."

Those comments were made in a dissenting judgment, but they are a good summary of the uncontroversial principles relevant to the fixing of non-parole periods.

1. In Power v R (1974) 131 CLR 623 at 627 – 628, Barwick CJ, Menzies, Stephen and Mason JJ said:

"It is true that, in following the legislation of other States and enacting the Parole of Prisoners Act 1966, the New South Wales legislature took a large step towards ensuring that a prisoner can, by his own behaviour while a prisoner, secure his release from confinement upon parole without serving the full term to which he has been sentenced, but the encouragement to reform so provided does not and obviously is not intended to take the sting out of imprisonment. To our minds no assistance towards the construction of the Act is to be had by considering the various objects of criminal punishment and by treating the non-parole period as retributive and the remainder of the time served in confinement as a period of rehabilitation. Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period, and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."

1. It would not have been unreasonable for the learned sentencing judge to have fixed a substantially shorter non-parole period and left it to the Parole Board to decide when it was appropriate for the appellant to be given conditional freedom.  However, in determining whether the non-parole period of 22 months was manifestly excessive, it is significant that the appellant was sentenced for serious crimes, that he had a long record of offending resulting in multiple sentences of imprisonment, and that the positive signs relating to rehabilitation were quite recent.  He had been sentenced to imprisonment for family violence offences committed in June and December 2009, and then committed the crimes in question while spending three months in prison.  It was only during a period of a little over three months after his release that signs of reform apparently emerged.  In all the circumstances I am not persuaded that the length of the non-parole period was manifestly excessive.

1. I would dismiss the appeal.

File No CCA 569/2010

DALLAS JOHN EAVES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J

15 December 2010

1. I agree with the reasons for judgment of Blow J and would also dismiss the appeal.