R v Chevalier
[2021] ACTSC 14
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chevalier |
Citation: | [2021] ACTSC 14 |
Hearing Date: | 3 February 2021 |
DecisionDate: | 3 February 2021 |
Before: | Mossop J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – aggravated robbery by joint commission – in custody at the time of the offence – low end of mid range objective seriousness – medium risk of reoffending – risk of deportation – significant criminal history – illicit substance abuse – mental health diagnosis – sentence of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT), s 72 Criminal Code 2002 (ACT), ss 310, 45A Migration Act 1958 (Cth), s 501(3A) |
Cases Cited: | Cranfield v Queen [2018] ACTCA 3 R v Chevalier [2018] ACTSC 236 R v Denniss [2021] ACTSC 15 |
Parties: | The Queen (Crown) Manoa Chevalier (Offender) |
Representation: | Counsel M Dyason (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number: | SCC 87 of 2020 |
MOSSOP J:
Introduction
The offender, Manoa Chevalier, has pleaded guilty to one count of joint commission aggravated robbery contrary to ss 310 and 45A of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment, a fine of $400,000 or both.
His co-offender, Tian-Jarrah Denniss, is being dealt with at the same time: see R v Denniss [2021] ACTSC 15. Mr Denniss is charged with the same offence, being joint commission aggravated robbery, as well as well as a separate arson offence that does not involve Mr Chevalier.
Facts
The facts in relation to the aggravated robbery offence relevant to both offenders are agreed and are, in summary, as follows.
On 15 December 2018 the offender, the co-offender and the victim were housed in Remand Unit 1 within the Alexander Maconochie Centre (AMC). Mr Chevalier was housed in cell 5, Mr Denniss in cell 18 and the victim in cell 15.
At around 6:06pm the offenders entered cell 15 through a partially opened door and found the victim seated and facing away from the entrance of the cell. On entering, Mr Denniss said to the victim “give me all your smokes”. The victim replied “what the fuck, no I’m not giving you all my smokes”. Mr Denniss then commenced punching and kicking the victim in the back of the head and neck. While this occurred, Mr Chevalier closed the door of the cell and said “I’ll be lookout”.
In an attempt to get away from Mr Denniss, the victim ended up on his computer desk before he jumped onto the bed next to the desk. The victim began calling out for the guards and attempted to block the punches and kicks coming from Mr Denniss to defend himself. Mr Chevalier then approached the victim and started punching and kicking the victim’s head.
The victim began shouting “get off” and “piss off” and ended up on the floor after Mr Denniss pulled the mattress away from the bed frame. One of the offenders told the victim to “shut up or you will get stabbed”.
While the victim was lying on the floor of his cell, the offenders continued to punch and kick his head, neck and abdomen.
Eventually, the victim told the offenders that his tobacco pouch, which was around a quarter full, was in his pillowcase. Mr Denniss took the tobacco pouch from the pillowcase and said “we know you’ve got more” to the victim. The victim was then told to “have a shower and clean up the blood because we don’t want to get into trouble. If we get into trouble over this, you will get stabbed”.
At around 6:12pm, the offenders left the victim’s cell. Mr Denniss was in possession of the pouch of tobacco.
At approximately 6:13pm, the offenders walked past a corrections officer at the bottom of the stairs. The corrections officer asked Mr Denniss “what’s going on?”. Mr Denniss replied, “yes, I know”. The corrections officer continued up the stairs into cell 15, where he observed the victim sitting at his desk, shaking, with blood running from his head and neck, as well as a pool of blood on the bed. The victim told the corrections officer that he had been assaulted by Mr Denniss and Mr Chevalier and that they had taken his tobacco.
The victim sustained two lacerations that required suturing, a graze and bruising to the back of his head. The victim also experienced bruising and swelling on his right eyelid, and bruising to his right cheek, left ear and chest. The Statement of Facts does not allow a finding as to which of the offenders actually inflicted these wounds.
Objective seriousness
In the present case the following matters are relevant to the assessment of the objective seriousness of the offending:
(a)The offence involved two offenders.
(b)Mr Chevalier offered to be a lookout for Mr Denniss in an apparent effort to minimise the likelihood of the offence being detected.
(c)Both offenders inflicted significant actual violence upon the victim collectively causing injuries requiring medical treatment including the suturing of two cuts to the victim’s head.
(d)The actual violence was primarily inflicted upon the victim’s head.
(e)The violence was inflicted to obtain compliance from the victim in relation to Mr Denniss’s demands for tobacco.
(f)No weapon was used in the offending.
(g)The items stolen was a one quarter pouch of tobacco which, although of only nominal value in the community, was of greater value to persons in custody.
(h)The offence was relatively unsophisticated and could not have involved a great deal of planning.
(i)Both offenders were serving sentences of full-time imprisonment at the time of the offending.
(j)The offending had immediate physical impacts upon the victim. While it is possible to say that there will be some psychological impacts flowing from the offending it is not possible to make a finding beyond reasonable doubt of any particular level of psychological impact.
Although Mr Denniss was the one to first strike the victim, Mr Chevalier joined in subsequently. It is not possible to apportion responsibility for the infliction of injuries upon the victim between Mr Chevalier and Mr Denniss.
Having regard to the gravity of the offence and the wide range of circumstances covered by it, the offending is at the low end of the mid range of objective seriousness for this offence.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report dated 27 January 2021.
The offender is 32 years old. He is currently serving a full-time custodial sentence at the AMC.
The offender was born in Fiji and adopted at three years old. He had a stable and supportive childhood in the care of his adoptive parents, who relocated to Canberra when he was 11 years old. He continues to maintain supportive relationships with his adoptive parents and sister who have visited him in custody.
The offender completed Year 9 at school before leaving formal education. He has previously been employed in the hospitality industry where he completed 14 months of a four year apprenticeship and has been employed as a cleaner. The offender was receiving Centrelink benefits before he entered custody.
The offender reported a long history of polysubstance abuse. At the age of 16 years old he commenced smoking cannabis daily and smoking methylamphetamine. He reported using up to 7 g of cannabis a week and 1.75 g of methylamphetamine. His methylamphetamine use continued until he was brought back into custody. He was released on Supreme Court bail on 10 August 2017 to attend a residential rehabilitation program provided by Oolong House, however, he was discharged 10 days later after testing positive for illicit drugs.
The offender has been diagnosed with schizophrenia. His records indicate that he has been in contact with ACT Mental Health since 2004. He has been prescribed anti‑psychotic medication but reported that his illicit drug use has adversely impacted his ability to maintain regular prescribed medication including depot injections. Since returning to custody in 2017, he reported having received monthly injections.
The offender reported that while most of his associates are antisocial, he does receive prosocial support from his family.
The author of the report states that the offender’s description of the offending was consistent with the agreed facts. The author of the report said that “[the offender] was able to explain how his crimes would have adversely affected the victim” and acknowledge that he will require further assistance from professionals to identify the thinking and choices that resulted in the current offending. In December 2020 the offender enrolled in a Cognitive Self Change Program in an effort to address his antisocial thinking and attitudes. The offender was able to acknowledge the importance of engaging in formal treatment to address his mental health issues and illicit substance use.
While in custody the offender received a letter from the Department of Home Affairs notifying him of the cancellation of his visa under s 501(3A) of the Migration Act 1958 (Cth). The author of the pre-sentence report noted that when the offender is released from custody, he will be taken into immigration detention before being deported.
The offender was assessed as at a medium risk of general reoffending. The author of the report said that the offender’s significant criminal history, long-standing substance use and mental health issues remain “a concern” and expressed the view that until the offender commits to treatment to adequately address these issues, he will continue to present a risk to the community.
Criminal history
He has a significant criminal history dating back to 2004. He has convictions for numerous property and violent conduct related offences committed in the ACT and NSW, for which sentences involving full-time imprisonment have been imposed. At the time when the current offence was committed, the offender was serving a sentence of full-time imprisonment for a prior offence of aggravated robbery by joint commission and the intentional infliction of grievous bodily harm. It is notable that these last offences were committed in circumstances that have similarity to the present circumstances in that they involved the offender and a co-offender entering the residence of another person and demanding drugs and money, followed by an altercation in which the offender stabbed the victim in the back. Reflecting the seriousness of this offending, the offender received an aggregate sentence of eight years and two months with a non‑parole period of five years: see R v Chevalier [2018] ACTSC 236.
Plea of guilty
The offender pleaded guilty to the present offence in the Supreme Court on 11 November 2020. A joint trial had been listed and was to commence on 16 November 2020. Mr Denniss pleaded guilty on the same day. The Crown case was a strong one and the plea was a late one. However, consistently with the guidance provided by the decision of the Court of Appeal in Cranfield v Queen [2018] ACTCA 3, a discount of 10% is still appropriate having regard to the significant utilitarian value of the plea.
Time in custody
The offender has not spent any time in custody in relation to this offence as the offending occurred while he was serving a sentence of imprisonment for previous offences.
Consideration
The offending in the present case involved actual violence committed by two prisoners on another prisoner in order to obtain a benefit. This kind of standover behaviour is not uncommon in a prison context. It is trite to say that people are sent to prison as punishment not for punishment. The proper application of the purposes of sentencing must involve a very significant component of punishment in order to provide both specific and general deterrence of such conduct.
The offender’s criminal history means that there is little room for leniency in sentencing. The predominant sentencing considerations must be deterrence, punishment and protection of the community, including through deterrence of other prisoners.
The evidence does not establish that the offender’s mental health condition influenced the offending conduct or will have any specific impact upon his service of a prison sentence. It is, however, appropriate to take it into account as part of his general subjective circumstances.
Section 72 of the Crimes (Sentencing) Act2005 (ACT) requires that the sentence be cumulative upon the existing sentences unless a direction is made to the contrary. Having regard to the separate serious offending, I do not consider that any more than a very modest degree of accumulation is appropriate and that is only because of considerations of parity and totality.
I do not consider that the fact that the Minister for Immigration presently intends to deport the offender, in any event, is a factor that should reduce the sentence imposed or increase the extent of concurrency. It is not clear whether the Minister’s present intention will exist at the point at which the offender would ultimately be released from custody.
The appropriate starting point for a sentence is a period of 40 months’ imprisonment which will be reduced to 36 months (three years) on account of the plea of guilty. This will be cumulative upon the existing sentence, except as to three months. I am required to reset the non-parole period. The existing sentence involves a non-parole period which is 61% of the head sentence. I will maintain that relationship between the aggregate sentence and the head sentence. This means that a period of 20 months will be added to the existing non-parole period.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery (CC2019/11523) the offender is convicted and sentenced to imprisonment for a period of three years commencing on 14 November 2024 and ending on 13 November 2027.
2. The non-parole period commences on 14 December 2016 and ends on 13 August 2023.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date:12 February 2021 |
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