R v De Vries
[2012] VSC 564
•21 November 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0116 of 2011
| THE QUEEN |
| v |
| RICHARD STEPHEN DE VRIES |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2012 | |
DATE OF SENTENCE: | 21 November 2012 | |
CASE MAY BE CITED AS: | R v De Vries | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 564 | |
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CRIMINAL LAW – Sentence after jury verdict – One count of murder, one count of manslaughter – Prospects of rehabilitation limited – Sentencing Act s 16(3B) – Reclaimed parole – No exceptional circumstances – Total effective sentence 31 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Paul D’Arcy | The Office of Public Prosecutions |
| For the Accused | Mr Gavin Meredith | Galbally and O’Bryan |
HIS HONOUR:
Richard Stephen Devries, on 21 June 2012, after a trial lasting some two weeks and several earlier attempts to complete your trial, a jury in Melbourne found you guilty of one count of murder and one count of manslaughter. The maximum penalty for murder is life imprisonment and for manslaughter is 20 years’ imprisonment. The count of murder concerned your stabbing of the deceased man Evan Rudd and the count of manslaughter your stabbing, shortly afterwards, of the deceased man Roy Poole. These incidents occurred on 18 February 2011 at premises at 1 High Street, Moe.
You were originally charged with murder in relation to the killing of both men. At your trial, the issue of self defence was raised on your behalf although you did not give evidence. On 5 October 2012 I heard submissions from the Crown and on your behalf as to the sentence that I should now impose on you.
The evidence at the trial demonstrated that on the night of 18 February 2011 you and a friend of yours, Stephen Turner, had been out at a hotel in Moe called Leggy’s and then later at an establishment, the Turfside Tabaret, and in the two or so hours that you were at each of those places you were drinking alcohol in some quantity.
After you and Turner had finished at the second establishment, you went to the unit owned by a man called Wes Bremner at 1 High Street, Moe which is in the same block where these offences were committed by you. Some time later you decided to leave and, as you and Turner walked towards your vehicle, you realised that it was blocked in by a black Holden Commodore. That vehicle was owned by the deceased man Roy Poole. Incensed at being inconvenienced, you then yelled out for the person who owned the black Commodore to move the car out of your way.
The witness, Rodney Havis, who was the principal witness in your trial, lived at Unit 6, 1 High Street, Moe. He lived there with his girlfriend Kristy Lowater and the deceased man Evan Rudd. Havis said in his evidence that he heard you yell out “Move your fucking car, move it or I’ll smash it up. I’ll slash the tyres”. Havis said that he responded by yelling back at you “You don’t live here, you don’t pay rent so just fuck off”. Obviously it would have been better if that had not been said.
The witness Gillian Creighton, who lived in Unit 4, was at home with her daughter and a friend. She described hearing shouting including, as it turns out, you saying “Whose car’s in my way, move your fucking car”.
Havis, Poole and Rudd then left Unit 6 for the purpose of moving the vehicle and, as they were going downstairs to move it, Havis said he heard you yelling out “Get a knife”. Havis then grabbed a sharpening steel from within his unit. You and he approached each other out in the car park. When you came together, having dropped the sharpening steel, Havis hit you in the jaw with his fist and you fell over backwards. Shortly after that, as Havis was telling you to get in the car and go, Turner assisted you to get in the car.
When you got to your vehicle, the car that was blocking it in owned by Roy Poole was being moved. You sat in your vehicle for a period of time and then drove to where Rudd and Havis were. Under the pretext of saying that you needed to get out of the car to collect some clothes, you stopped and did try to get out of the vehicle. The deceased man Rudd had tried to stop you from getting out. You then got out of the car, obviously armed with a knife, and stabbed Rudd in the chest. Both Rudd and Poole were unarmed. Havis said in his evidence that you looked like you were punching him all over the chest. He described Rudd going limp as a result of what was occurring. The post-mortem carried out by Dr Lynch demonstrated that Rudd had a stab wound to the chest which resulted in a fatal haemorrhage.
At that point, the deceased man Roy Poole was walking up to where Rudd was and as he got closer he went to grab you, at which point you also stabbed him. Dr Lynch identified two stab wounds to the upper body of Roy Poole. The wounds to both men were fatal.
At the time you stabbed these two men, there was nothing whatsoever to prevent you from driving your vehicle out of the driveway of the units. You had no valid reason to stop your car and get out as you did. I am satisfied the only reason that you stopped the vehicle in the vicinity of these men was for the purpose of attacking them with the knife in your possession and in retaliation for the fact that you had suffered in the previous altercation some time beforehand. Mr Meredith, on your behalf, suggested the situation was “evolving” but by the time you stabbed these two men, the situation which so annoyed you had been resolved and you could have left the area. Having stabbed these two men you then drove away in your car. You must have known that you had inflicted serious injuries on both of them but you obviously cared little for their welfare.
As to your account of what occurred, Mr Meredith informed me that, at least while he was your counsel, you had offered to plead guilty to defensive homicide as to both counts and I can regard that as showing some willingness on your part accept a level of responsibility for what you did. The jury were directed on that possible alternative and, by their verdicts, they have rejected any notion that you were defending yourself or believed you were.
These are extremely serious offences and are, in some respects, almost beyond belief. For example, that two men could have lost their lives over some minor issue about car parking brings to a new level my frustration at the willingness of some young men, affected by alcohol, as you were, to use knives to make some futile point resulting in a tragedy. I have no doubt the community is, or would be, appalled by this utterly pointless and avoidable loss of two young lives and, for that matter, the ruination of your life for the foreseeable future.
Victim Impact Statements
During the course of a plea presented on your behalf, Victim Impact Statements were filed on behalf of a number of people affected by your crimes. They included Evan Rudd Snr, Paula Rudd, Crystal Rudd, Rebecca Poole, Claire Walkinshaw, Deborah Poole, Elizabeth Gorel and Michelle Battista. Some of those victim impact statements were read to the Court by those who signed them. Others were read by the prosecutor.
Listening to the effect of your crimes on those people close to the men whose lives you took was obviously a harrowing experience. Each of those people has been significantly affected by your actions and the consequent death of the particular individual close to them. Evan Rudd was 29 years of age. Roy Poole was the same age. Their friends and family are having to deal with the fact that these young lives were taken as they were embarking on the best years of their adult lives and clearly those close to them will carry the impact of your crimes for the rest of their lives. I take the relevant parts of those victim impact statements into account in the sentence that I will impose upon you.
Personal Circumstances
You were born on 16 April 1974 and are therefore now 38 years of age. You grew up in the area of the Latrobe Valley and your parents apparently separated at an early stage of your life. When you were aged 10, it appears you witnessed an attack on your step-father which resulted in his death. You have two brothers. The sparse information available suggests your education finished at year 10 level.
You apparently have a son and you have endeavoured to participate in his life; that has not gone well although you have apparently re-established that relationship to some degree. Your only ability to work is as an unskilled labourer.
Your prior convictions began in 1991 when you were 17, with offences of armed robbery and theft. From then on, you have a very large number of previous convictions, many of which involve offences of violence and dishonesty. You have spent a significant period of time since the age of 17 in custody. As best I can calculate, you have something of the order of 80 convictions from approximately 19 court appearances over this period of time.
As Mr Meredith pointed out, it would appear that you have been in the adult penal system from the age of 17.
I frankly do not know what to make of your prospects. Despite the submissions of Mr Meredith, I can only conclude that your prospects for rehabilitation at any time in the future are very poor. At the point where I would normally be able to recite your background in the hope of trying to understand your conduct and looking for some basis on which to assess your prospects of rehabilitation, I was told by Mr Meredith on your behalf that although no disrespect was meant, you did not wish to “dredge up the past” or involve family and friends in this matter. I therefore do not have any significant outline of your personal circumstances beyond your criminal record.
Likewise, a consultant psychologist was engaged to endeavour to give some assessment of your present psychological condition and, although it would appear that a report was prepared, it was not relied upon or dealt with during the course of the plea on your behalf.
Reclaimed Parole
You were arrested for this matter on 21 February 2011, three days after the incident occurred. As I understand it, as at that date you had been on parole for a period of some two years in relation to the offence of recklessly causing serious injury. That was an offence which you committed in the Fulham Prison in 2003. For that offence you were originally sentenced to five years’ imprisonment with a minimum of three years and nine months. In turn, that sentence was to be served cumulatively on a sentence you were then undergoing for armed robbery imposed by the Melbourne County Court on 2 September 2002, being a sentence of five years’ imprisonment with a non-parole period of three years.
On 21 April 2005, the Court of Appeal allowed an appeal by you against the sentence for intentionally causing serious injury and although the head sentence of five years was confirmed by the Court, a new single non-parole period was fixed for both that sentence and the earlier sentence for armed robbery and assault. That non-parole period was fixed at six years and six months and was to date from 2 September 2002 when the sentence for armed robbery and assault was imposed on you. 178 days was then fixed as pre-sentence detention.
The result was that you were undergoing a total effective sentence of 10 years with a non-parole period of six years and six months. You were released on parole in or about February 2009 and these offences for which I now sentence you occurred two years later. You were therefore still on parole when you committed them, your head sentence notionally expiring on 2 September 2012. As a result of these matters, your parole was revoked and I am informed that your pre-sentence detention for the offences before me is only two days. You will finish serving your sentence for the other matters in the latter part of 2014.
Section 16(3B) of the Sentencing Act 1991 requires that unless exceptional circumstances are demonstrated, the sentence I will now impose on you must be served cumulatively on the sentence you are presently serving as a result of being reclaimed by the Parole Board. In effect Mr Meredith argued that because I have to be conscious of the principle of totality, that, in itself is an exceptional circumstance given the likely magnitude of the sentence I must impose on you. I do not agree in terms with the submission but, in accordance with the principle of totality, I have moderated the sentence appropriately.[1]
[1] Contin v R [2012] VSCA 247 at [24], [38]-[68] and the cases cited therein; R v Hunter (2006) 14 VR 366 at pp 341-2; DPP v Johnson [2011] VSCA 288 at [57]-[73].
Your counsel also submitted that given the close proximity of the two offences of murder and manslaughter, I should impose a substantial degree of concurrency on the two sentences. I will do that to an extent but I am satisfied that, once armed with a knife, you intended to attack such of these men as you could. The jury were satisfied that you intended either to kill Evan Rudd or cause him really serious injury and were obviously not so satisfied in relation to Roy Poole. By your actions, however, you demonstrated an intention to injure Poole with the knife you were using. You were using that knife on Poole when he, unarmed, was endeavouring to intervene as you stabbed Rudd. In my opinion this is a very serious offence of manslaughter and a significant level of cumulation is required in recognition of that conclusion.
Conclusion
As I said earlier, these were terrible crimes. They were futile, violent and mindless and by the time you stabbed these men your actions were unprovoked. You were being urged to leave the premises. Your prior convictions combined with these two very serious offences indicate to me that you have a low prospect of any meaningful rehabilitation. In this case you have destroyed two lives, seriously affected the lives of a number of others and left yourself with little to hope for. Your conduct is to be condemned and the community is entitled to be protected from you.
In the circumstances, it seems to me that the appropriate sentence for the murder of Evan Rudd is a sentence of 24 years’ imprisonment. For the manslaughter of Roy Poole you are sentenced to 13 years’ imprisonment. I direct that seven years of the sentence imposed for the offence of manslaughter be served cumulatively upon the sentence for murder resulting in a total effective sentence of 31 years’ imprisonment. Further, I direct that the period you must serve before being eligible for release on parole in respect of all sentences is a period of 24 years.
I determine that your pre-sentence detention is a period of two days and I direct that be reckoned as time already served and entered in the records of the Court.
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