Gordon and Pickett v State of Tasmania

[2008] TASSC 8

[2008] TASSC 8

CITATION:              Gordon and Pickett v State of Tasmania [2008] TASSC 8

PARTIES:  GORDON, Jason Paul

v
STATE OF TASMANIA

PICKETT, Adrian Alwyn
v
STATE OF TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  253/2007

591/2007

DELIVERED ON:  4 March 2008
DELIVERED AT:  Hobart
HEARING DATES:  25 February 2008
JUDGMENT OF:  Underwood CJ, Slicer and Tennent JJ

CATCHWORDS:

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Factual basis for sentence – Proof and evidence – Generally – Evidence of good conduct and rehabilitation after sentence not relevant unless it shows true significance of facts in existence at the time sentence imposed.

R v Stanley (1998) 7 Tas R 357, followed.

Aust Dig Criminal Law [823]

Criminal Law - Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Parity – Co-offenders – General principles – Who are co-offenders.

Lowe v R (1984) 154 CLR 606, applied.
Aust Dig Criminal Law [836]

REPRESENTATION:

Counsel:
             Appellant Gordon:  K Baumeler
             Appellant Pickett:  Self Represented
             Respondent:  D G Coates SC
Solicitors:
             Appellant Gordon  Butler McIntyre & Butler
             Appellant Pickett:  Self Represented
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 8
Number of Paragraphs:  29

Serial No 8/2008
File Nos 253/2007

591/2007

JASON PAUL GORDON v STATE OF TASMANIA
ADRIAN ALWYN PICKETT v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
SLICER J
TENNENT J
4 March 2008

Orders of the Court:

1. The appeal of Jason Paul Gordon is dismissed.

1. The appeal of Adrian Alwyn Pickett is dismissed.

Serial No 8/2008
File Nos 253/2007

591/2007

JASON PAUL GORDON v STATE OF TASMANIA
ADRIAN ALWYN PICKETT v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
SLICER J
TENNENT J
4 March 2008

Introduction

1. The appellant Jason Paul Gordon, and the appellant Adrian Alwyn Pickett, were joined in an indictment with Matthew David Dwyer and Damien Steven Matthews.  For ease of reference we will refer to all four men by their surnames only. 

1. On 10 May 2007, all four were arraigned before Evans J and pleaded guilty to various crimes.  At the same time, pleas were taken from Matthews on another indictment, and from Dwyer on a complaint. 

1. Briefly stated, all the crimes charged related to a foiled attempt by some violent criminals to escape from the prison at Risdon.  The learned sentencing judge referred to Pickett and a fellow inmate, Conway Richardson, as having "orchestrated events with the intention of escaping".  Matthews was described as "the primary out of prison contact for Pickett and Richardson".  He obtained items and gave them to Dwyer, a corrupt prison officer employed at the Risdon Prison, who carried them into the gaol.  Gordon was approached by Matthews and supplied him with a pistol and ammunition to be used in the escape. 

1. On 24 May 2007, Evans J sentenced the four men as follows:

(1)       Matthews:

·     conspiracy to commit the crime of escape ¾ five years' imprisonment;

·     causing grievous bodily harm (an unrelated event) ¾ 15 months' imprisonment, cumulative;

·     trafficking in a controlled substance (an unrelated event) ¾ 6 months' imprisonment, cumulative;

·     not eligible for release on parole until two-thirds of all sentences have been served.

(2)       Dwyer:

·     corruption of an officer of justice, conspiracy to commit the crime of escape, supply a controlled plant and supply a controlled drug (all related events) ¾  5 years' imprisonment;

·     not eligible for parole until two-thirds of the sentence has been served.

(3)       Gordon:

·     having in possession a dangerous thing with intent to facilitate the commission of a crime ¾ 2 years, three months' imprisonment cumulative on the sentence he was then serving;

·     not eligible for parole until two-thirds of the sentence has been served.

(4)       Pickett:

·     conspiracy to commit the crime of escape and perverting justice (a related event) ¾  5 years' imprisonment;

·     not eligible for parole until two-thirds of the sentence has been served.

1. At the time Matthews, Dwyer, Gordon and Pickett were sentenced, none of the other prisoners involved in the proposed escape had been sentenced.

Appeal against sentence

1. Gordon and Pickett have each appealed against their sentence upon the ground that it is manifestly excessive.  Gordon has also relied on the additional ground:

"That His Honour failed to adequately consider the question of parity in relation to the accused Adrian Alwyn Pickett, Damien Steven Matthews, and Matthew David Dwyer who were sentenced on the related matter of Conspiracy, contrary to Section 297(c) of the Criminal Code, to a sentence of five years imprisonment."

The circumstances surrounding the commission of the crimes

1. The circumstances surrounding the commission of the crimes committed as part of the escape plan are well described by the learned sentencing judge in the following passage taken from his comments on passing sentence:

"In March 2006 Dwyer was a prison officer in Division 7 at Risdon Prison.  That division houses inmates that require segregation for various reasons.  Inmates in that division included Pickett and Richardson, each of whom have extensive prior convictions for crimes of violence.  Matthews was a friend of Pickett and Richardson, Matthews also had an extensive record of prior convictions but he was not then in prison.

In about early March 2006 Dwyer approached Pickett for a loan.  Pickett agreed subject to Dwyer bringing a mobile telephone into the prison for Pickett.  Thereafter Matthews, at Pickett's direction, provided Dwyer with two mobile phones and a package containing drugs.  Dwyer kept one of the telephones in his car and smuggled the other items into the prison.  The telephone he smuggled in was provided to Pickett.

On the 12th April Dwyer telephoned Matthews and they arranged to meet.  Meanwhile Dwyer was having discussions with Pickett and Richardson about their proposed escape from Risdon Prison.  Dwyer assisted them by drawing plans of the prison which he provided to Pickett.  Also on the 12th April 2006 Matthews, at Richardson's request, rang Jeffrey Radloff [a convicted criminal but not then in prison] and asked for a loan of five hundred dollars to be used to fix up Dwyer.  Radloff agreed to provide the money.  Matthews also telephoned Richardson as to Dwyer delivering Morphine and Valium into the prison.

On Friday, 14th April Matthews met Dwyer as previously arranged and gave him some drugs, needles and five hundred dollars.  The drugs and needles were provided to Pickett by Dwyer.  These allegations are not admitted by Matthews, as to them he has pleaded not guilty to a charge of bribing an officer of justice.  In respect of the same allegations Dwyer has pleaded guilty to a charge of corruption of an officer of justice.

On the 16th April Pickett spoke to Matthews about the plans of the prison that Dwyer had prepared.  On the 18th April Richardson told Matthews to get a pistol from his, Richardson's, father and deliver it to Dwyer in order that Dwyer could bring it into the prison for the escape.  Matthews said he would wipe the pistol down.  Pickett had previously told Dwyer that he was to bring a pistol into the prison to assist Pickett and Richardson in their escape. 

Later on the 18th April at 13:21 Richardson told Matthews that his father had obtained a gun and asked Matthews to get some bullets for it from Gordon.  Matthews telephoned Gordon, who said he did not have bullets of the requested size but mentioned that he had bullets of a different size for a pistol he had.  Gordon refused to provide the pistol to Matthews.  In the course of encouraging Gordon to make the pistol available Matthews told him that it was needed for a really big purpose and that he would blow up when he heard about it.  Matthews advised Richardson of Gordon's stance on making the pistol available so Richardson phoned Gordon. 

At 13:54 Richardson phoned Matthews and told him that Gordon would let him have the pistol and bullets.  Richardson told Matthews that in persuading Gordon to provide the pistol he had said that 'Someone needs it out there for three days and then I'll get it back to you'.  Richardson told Matthews to collect the pistol and ammunition.  Radloff then got on Matthews' telephone and spoke to Richardson, who told Radloff he was endeavouring to organise a few pistols, to which Radloff replied, 'I know, I'm trying to find them for you'.  Radloff suggested that they would be better off with sawn-off shotguns.  Richardson raised the difficulty of getting shotguns into the prison, Radloff commented that it would not be necessary to use the weapons, to which Richardson responded, 'We got to shoot one, that's part of the deal'.   Matthews then had a series of telephone conversations with Gordon, Dwyer and Richardson about collecting the pistol and bullets and providing them to Dwyer.  It was arranged that Matthews should deliver the gun to Dwyer's residence together with some drugs in a balloon.

Prior to 14:38 Gordon was observed arriving at Matthews' residence.  Gordon provided Matthews with a0.25 Mellor pistol which had five rounds for the magazine and twelve extra rounds.  At 14:38 Matthews told Richardson he had the pistol.  Richardson asked Matthews to tell Radloff to organise camping gear and some shotguns for when they were out.

At 14:52 Richardson asked Gordon to assist Matthews by driving him to a few places but Gordon refused.  At 16:11 in the course of a conversation between Matthews and Richardson, Richardson made it plain to Matthews that the pistol was required in the prison 'for use when we are comin' out'.  It seems from the transcript of that conversation that Matthews had been under the impression that the pistol was to be used by persons going into the prison.

At 16:23 Matthews was observed arriving at Dwyer's residence and placing a white package in the glove box of Dwyer's vehicle.  Inside the package was the pistol and the ammunition.  Matthews also placed a balloon containing 4.9 grams of cannabis and two MS Contin tablets in the glove box.  Matthews telephoned Dwyer and told him the items were in the glove box and then telephoned Richardson and told him he had made the delivery.  They discussed the intended escape and Matthews' involvement.  To deflect what he understood to be a suggestion that he should go into the prison Matthews said he would listen to scanners and provide warnings as to police activity.

On 19th April at approximately 5:50 Dwyer's vehicle was intercepted as he drove to Risdon Prison.  The police found the pistol, ammunition, two Contin tablets and Cannabis.  Dwyer denied any knowledge of these items.  The second of the mobile phones Matthews had provided to Dwyer was found under the driver's seat, it had Matthews' and Pickett's telephone numbers stored in it.  Matthews, who was not aware of Dwyer's arrest, telephoned Pickett, who said that he'd not yet received the pistol.  Pickett commented that on the way out of the prison he was going to shoot inmate Red Riley in the head, Pickett also said that Dwyer wanted to be shot in order that he would get a big payout and wouldn't have to work again.

The State does not assert that the conspirators were conspiring to have a person shot, however it contends that there was every possibility that someone would be shot had the pistol been delivered and the break out eventuated."

1. The escape plans came to the attention of police through telephone interceptions.  When Pickett learned of the interception of Dwyer on 19 April 2006, he asked police to interview him.  He said to them that he got a person (whose name he refused to disclose) to put the pistol, the ammunition and the drugs into Dwyer's glove box.  He falsely said that Dwyer did not know they were there.  He also falsely told police that the plan was to tell Dwyer about the contents of his glove box when he got to work in order to scare him into bringing things into the prison.  These are the facts that related to the commission of the crime of perverting justice in respect of which Pickett entered his plea of guilty.

The circumstances of the offender: Pickett

1. At the time of the imposition of the sentence that is the subject of this appeal, Pickett, then aged 30, had been in prison since 2 February 2002 serving sentences totalling 9 years and 11 months.  He was not then eligible for release on parole until 13 April 2009.  He had a very long list of prior convictions for crimes involving violence and dishonesty.  The learned sentencing judge summarised this criminal history in his comments on passing sentence when he said:

"So as to illustrate the extent of his prior convictions I note that the number of his convictions for the following offences is about as indicated.  Aggravated armed robbery (2), wounding (1), assault and common assault (5), escape and attempted escape (4), possessing an unregistered firearm (1), burglary (31) stealing (22), destroy property, injury property and damage property (13), assault police (4), resist police, obstruct police and threaten police (4), abusive language (5), drive whilst disqualified (6)".

His Honour continued:

"[Pickett] is currently serving a sentence of eight years imprisonment with effect from the 2nd February 2002 in respect of two aggravated armed robberies, a gun or revolver was used on each occasion.  Since his admission to prison he's been convicted of three common assaults, wounding and assault.  The conviction for wounding arose from the defendant stabbing a prison officer with a sharpened toothbrush.  The conviction for assault arose from the defendant striking a prison officer with a piece of wood."

1. There was little to be said by way of mitigation except, as the learned sentencing judge noted, Pickett pleaded guilty at a relatively early stage.  His Honour also noted, as was evidenced by a report prepared by Ms Hunn, a "high needs support counsellor", that Pickett's conduct in prison had shown a very marked improvement since the opening of the new prison and his transfer into a Behavioural Management Unit. 

Pickett's appeal

1. In his comments on passing sentence, the learned sentencing judge correctly observed that because Pickett was serving a long sentence, he was obliged to apply the "totality principle", viz not to impose a "crushing sentence not in keeping with [Pickett's] record and prospects", per Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 304.

1. The crime of conspiracy to commit the crime of escape was very serious.  Had the unlawful agreement been put into full effect there was a real risk that death or injury might have been caused by the use of the pistol that was to be smuggled into the prison to aid the escapees.  The conspiracy involved the corruption of a prison officer and had it been effected, would have freed violent criminals, causing fear and alarm in the general community.  Obviously, in addition to punishment and personal deterrence, general deterrence loomed large in the exercise of the sentencing discretion.  There was nothing in Pickett's antecedents to mitigate against the imposition of full penalty.  The conspiracy related to a breakout from the prison by hardened criminals, armed with a loaded gun, and prepared to do violence.  In these circumstances a sentence of five years' imprisonment with a two-third non-parole period, was, in our view, well within the proper exercise of the sentencing discretion.

1. Upon the hearing of this appeal, Pickett relied heavily upon a report from the Correctional Manager, Maximum Security and Special Needs, dated 24 February 2008.  It is a glowing testament to Pickett's concentrated and sustained effort at rehabilitation, and by inference, a tribute to the staff who have worked with Pickett since his move to the new prison and the programs they now administer.  The report speaks of a complete turn around in Pickett's behaviour since 2006.  He is now prepared to interact well with other inmates and staff in lieu of his previous tendency to argue and fight.  Most importantly, he has completed courses through Hobart College and has now progressed on to university studies.  He is currently enrolled with the University of Queensland in a Bioinformatics course that will take four years to complete, and will give Pickett a Bachelor of Science degree.  This will open up a number of opportunities for Pickett upon his release, opportunities that he has never previously had.  The report concludes:

"I believe that if [Pickett] continues with his positive behaviours, and remains focused on his future as well as completing his studies and meeting his objectives, then he will not only move through the Prison system but reintegrate back into the community a different person.  This will not always be easy for [Pickett] but I believe he will achieve this if he can continue down the positive path that he has now chosen."

1. Although Pickett's conduct in prison, as described in the report, is most commendable and encouraging, it does not assist him on this appeal.  This Court is required to determine whether, on the material before the learned sentencing judge, error occurred in the exercise of his discretion.  Unless some error is demonstrated, either general or specific, it is not for this Court to simply reassess an appropriate sentence in the light of events that have occurred since the original sentence was passed.

1. The report tendered to this Court referred to Pickett's conduct in prison, both before and after the imposition of the sentence in respect of which this appeal is brought.  Insofar as the report referred to Pickett's conduct before the imposition of that sentence, that material was, as mentioned earlier, before the learned sentencing judge in the report from Ms Hunn, a high needs counsellor. 

1. Thus, the contents of the report handed to this Court and dated 24 February 2008, could not be described as new material or fresh evidence which this Court ought to receive in accordance with its general power to receive fresh evidence upon the hearing of an appeal pursuant to the Criminal Code, s409(1)(c). This Court held in R v Stanley (1998) 7 Tas R 357 that generally speaking, the Court of Criminal Appeal will only receive evidence of events that have occurred after sentence if they show the true significance of facts which were in existence at the time of sentence. In Stanley, the following passage from the judgment of King CJ in R v Smith (1987) 44 SASR 587 at 588 was cited with approval:

"The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."

1. Accordingly, the recent report on Pickett's improved conduct and his rehabilitation tendered in this Court, cannot be accepted as fresh evidence on the hearing of an appeal against the sentence that was imposed in May 2007.

1. The sentence does not reflect any error in the exercise of the discretion and Pickett's appeal is dismissed.  In dismissing the appeal, the Court refers Pickett, who is a self-represented appellant, to the Corrections Act 1997, s70, which provides:

"Subject to section 71, a prisoner is not to be released on parole before the completion of ¾  

(a)the non-parole period applicable to the prisoner's sentence; or

(b)a continuous period of imprisonment of 6 months ¾

whichever is the greater, unless, in the opinion of the Board, there are exceptional circumstances warranting the earlier release on parole of the prisoner."

1. In doing so, the Court expresses no opinion as to whether Pickett's conduct since the imposition of sentence and outlined in the report tendered to this Court, if continued for some time into the future, could constitute exceptional circumstances within the meaning of s70(b).

The circumstances of the offender: Gordon

1. Gordon was 34 years old when the sentence was ordered on 24 May 2007.  He was not in custody at the time he committed the crime of having in his possession a dangerous thing within intent to facilitate the commission of a crime, but was in custody when sentenced.  In 2003, he was convicted and sentenced for crimes involving a "ram raid" of a shopping centre and the attempted theft of an ATM containing $234,500.  On 6 April 2005, he was released on parole for 20 months and 22 days.  The crime which is the subject matter of this appeal was committed whilst he was on parole.  He was in prison at the time of sentence for that crime because his parole had been suspended and later revoked.

1. In a letter written by Gordon and handed to the learned sentencing judge, Gordon explained that immediately on his discharge from prison in 2005, he got work as a roof plumber but four months later he was the victim of an unprovoked attack.  He was stabbed and lost one eye in this incident.  The letter explained that Gordon was fearful for his safety and the safety of his family and acquired the pistol for personal protection. 

1. Gordon had a prior record for crimes and offences involving dishonesty, and in 2002 he was sentenced to 15 months' imprisonment for burglary, stealing and aggravated assault.  In 2003 he was convicted of firearms offences.  The crimes arising from the attempted theft of the ATM were committed by Gordon in the company of Conway Richardson.  A three year sentence was imposed with respect to these matters. 

Gordon's appeal

1. Ms Baumeler, counsel for Gordon, submitted that it was significant that Gordon handed the pistol and 17 rounds of ammunition to Matthews and that he did not know that it was to be carried into the prison by a corrupt prison officer.  This is true, for Gordon did not know that a corrupt prison officer was involved in any criminal activity.  However, he did know a hardened criminal, Conway Richardson, was asking him to make the pistol available.  Further, Gordon must have known that there was a real risk that the gun would be fired in the course of committing a crime because:

·     he supplied a total of 17 bullets, more than could be held in the magazine at any one time; and

·     Matthews told him that the pistol was needed "for a really big purpose and that he would blow up when he heard about it".

1. In her submission in support of Gordon's appeal, Ms Baumeler relied upon the fact that when Richardson telephoned Gordon to persuade him to lend his pistol, Richardson said, "Someone needs it out there for three days and I'll get it back to you".  With respect to that statement, Ms Baumeler submitted to the learned sentencing judge and to this Court, that Gordon's "mindset" was that the pistol could not be given back to him if it was going to be used, viz, fired, because ballistics' examination would result in the gun being traced to him.  However, Ms Baumeler did not contend, either to the learned sentencing judge or to this Court, that Gordon had an affirmative belief that if lent, the pistol would not be fired.  We see neither logic nor mitigation in the asserted propositions that led to the so-called "mindset" for if the gun was fired in the course of criminal conduct, it is likely the offender would want to get rid of it quickly, and equally likely he or she would do that by immediately returning it to Gordon.

1. Ms Baumeler further submitted that Gordon's sentence offended the parity rule when regard was had to the sentences imposed on Dwyer, Matthews and Pickett.  We reject this submission.  The parity principle applies to "persons who have been parties to the commission of the same offence [who] should, if all other things are equal, receive the same sentence …".  Per Gibbs CJ in Lowe v R (1984) 154 CLR 606 at 609.

1. Although Gordon's criminal conduct was clearly linked to the criminal conduct of Matthews, Dwyer and Pickett, Gordon was not a party to the commission of any of the crimes committed by them, and they were not parties to the crime committed by Gordon.  Although, generally speaking, there should be consistency in sentencing, Gordon cannot legitimately claim to have a justifiable sense of grievance arising from a comparison of his sentence with the sentences imposed on the others and thereby claim entitlement to an order setting his sentence aside.  See Mason J (as he then was) in Lowe at 612.

1. Gordon's criminality was of a high order.  Although he did not know the pistol was to be used in a prison breakout, he knew that it was intended to be used to facilitate the commission of a very serious crime, one so serious "he would blow up when he heard about it" and, for the reasons we have advanced, must have known it might be fired, and might cause death or serious injury.  At the time the crime was committed, Gordon had a record for serious, and on at least one occasion, violent criminal conduct. 

1. Ms Baumeler also submitted that general deterrence should not have been a significant factor in the exercise of the sentencing discretion because, in Tasmania, there have been very few convictions for being in possession of a thing with the intention of facilitating the commission of a crime.  Few convictions for any crime does not necessarily mean that general deterrence is not an important aspect of the sentencing process.  In cases like this one, the seriousness of the criminal conduct may be such that an isolated instance of such conduct is enough to require the Court to impose a sentence that will, amongst other things, send a message that repetition of the criminal conduct will be visited with severe punishment.

1. In our view, a sentence of two years and three months' imprisonment with a two-thirds non-parole period does not reflect either specific or general error in the exercise of the sentencing discretion.  The appeal is dismissed.