R v Devine, Robert Joseph (No 2)

[1998] TASSC 56

56/1998

PARTIES:  R
  v
  DEVINE, Robert Joseph (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  14/1998
DELIVERED:  14 May 1998
HEARING DATE/S:  21, 22, 23 April and 13 May 1998
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgement and punishment - Sentence -Miscellaneous matters - Remission, parole and prisoner classification - Whether court may consider consequences of breach of parole in deciding whether to suspend sentence.

R v Paivinen (1985) 158 CLR 489, applied.
R v Yates [1985] VR 41, followed.
George v R A19/1986, considered.
Parole Act 1975 (Tas), ss21, 25(4), 25(4A).
Aust Dig Criminal Law [848]

REPRESENTATION:

Counsel:
             Crown:  M A Stoddart
             Accused:  S C Chopping, J S Wilkinson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Steven Chopping

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  56/1998
Number of pages:  4

Serial No 56/1998
File No 14/1998

THE QUEEN v ROBERT JOSEPH DEVINE (No 2)

REASONS FOR JUDGMENT  SLICER J

14 May 1998

Robert Joseph Devine has been found guilty of one count of burglary and one count of stealing, and acquitted of two other counts of stealing.  The circumstances giving rise to conviction are those stated in general terms in the judgment of R v Devine 42/1998.  The verdicts of the jury are consistent with the Crown case that Mr Devine took the items intending to place them at another's premises, in order to cause trouble to that person in retaliation for some previous event.  The jury might not have been satisfied beyond reasonable doubt that he intended to permanently deprive the owners of ownership of some of the items, in that they could eventually have been returned, or alternatively that the statutory provisions of the Code, s234, had not been met.  When apprehended by police, the offender made claim to the three items comprised in count 2 and removed them from the scene.  The jury may well have concluded that such taking was accompanied by an intent to permanently deprive the owners.  The verdicts are consistent with an act of entry to the vehicle, removal of the items in count 2, and the subsequent taking of the items comprised in counts 4 and 5.  The crime of burglary was complete upon entry and the intent necessary to ground a conviction for count 2 held, at least at the time the items were placed by Devine in his wife's vehicle.  It is on this basis that sentence will be imposed.  The conduct was dishonest, but directed at making trouble for another.  Devine was charged on 16 April 1997 and elected committal proceedings and trial in the Supreme Court, although he had the right to summary trial.  He is not entitled to the benefit of an early plea.  The offender, aged 41, is married with two young children.  He has an extensive record of prior convictions commencing in 1966.  He has accumulated sixteen convictions for burglary, twenty-eight for stealing, one for armed robbery and numerous others for various forms of anti-social behaviour.  Whilst the crimes for which he has been convicted are relatively minor, the record of the offender warrants the imposition of a custodial sentence.

Parole Act

In 1991, Devine was convicted of the crime of armed robbery and sentenced to a term of imprisonment for a period of eight years.  Whilst he has subsequent relevant convictions, all relate to acts of criminal conduct occurring before the commission of that robbery.  On 14 November 1995, he was afforded parole.  The Parole Act 1975, s25(4), ("the Act") provides:

"(4) Where a person is sentenced to imprisonment for an offence committed during the period of his release on parole, that release is, by virtue of this subsection, revoked, whether or not, at the time of his conviction for that offence, the period of that release had expired."

Thus the imposition of a sentence of imprisonment in these proceedings could result in the offender being required to serve a further period of four years' imprisonment.  However, the provision does not preclude a fresh application for parole and the Board might well grant release at a time earlier than any unexpired term.  The sentencing hearing was reconvened so that the policy of the Board in relation to such a situation could be stated.  The Court was informed that the Board would give consideration to further parole, but that no particular policy governed the circumstance other than that each case was considered on its particular circumstances.  It is not necessary for the purpose of this case to give consideration to the import of the Act, s12C, or the effect of s21.

The Act further provides, s25(4A):

"Subsection (4) does not apply where the execution of the whole of a sentence referred to in that subsection is suspended under the Criminal Code or the Justices Act 1959."

The first section is mandatory, whilst the second permits the Parole Board to exercise its own discretion in deciding whether to revoke the parole.

Three preliminary questions arise.  The first is whether a court is permitted to pay regard to the fact that the offender was on parole at the time of the commission of the crime in determining the "head" sentence.  The answer must be in the affirmative.  The commission of a crime, whilst the offender is on bail, subject to a suspended sentence or on licence, is ordinarily regarded as a matter of aggravation in that it shows persistency of conduct and a wilful disregard of sanction or leniency.  The second is whether, in the determination of a head sentence, the Court is permitted to pay regard to the consequences of such sentence, that is, whether the imposition of a custodial sentence would bring into operation the provisions of the Act, s25(4), or, s25(4A).  Authorities support the conclusion that the Court is not so permitted.  It is improper to pay regard to a possible date of release on parole in the determination of the length of sentence (R v Paivinen (1985) 158 CLR 489, R v Yates [1985] VR 41) and it would be equally inappropriate to pay regard to the consequences in the determination of the head sentence except, perhaps, in any application of the "totality" principle. Whilst a court may pay regard to the existence of rehabilitative and directive measures afforded by parole legislation (George v R A19/1986), such regard relates to what may be described as secondary questions.  The third question is whether the Court may consider those provisions in deciding whether or not to suspend the sentence.  Logic would suggest an affirmative answer.  A court is permitted to pay regard to the presence of a suspended sentence in determining the appropriate sanction so as to give effect to the principles of totality.  Although a court exercising jurisdiction afforded by the Justices Act 1959 is, by virtue of s74C(10), precluded in certain circumstances from taking into account possible consequences involving a suspended sentence, the Act, s21, permits the Court to consider whether special circumstances exist which would warrant an order that any sentence of imprisonment be concurrent with the unexpired portion of a sentence to be served following revocation of parole.  In considering those circumstances, a sentencing tribunal ought be required to pay regard to the length of the unexpired period, whether any continued serving of such sentence is mandatory or discretionary, and the like.  If such be appropriate, then a court ought be permitted to pay regard to the consequences of a sentence on the future disposition of the offender.

Exercise of Discretion

There are no circumstances, other than the question of parole, which would warrant the suspension of a sentence.  Devine may well have commenced a new life since his release on parole, but his experience ought to have inhibited criminal conduct designed to cause harm to another, and, at the very least, to have caused him to desist in the removal of those items when apprehended by police.  Conversely, the suspension of the sentence ought not preclude the offender from being required to serve the balance or portion of the remaining sentence.  That would remain the province of the Board.  But the circumstances of the crimes, for which he has been convicted, do not warrant the inevitable conclusion that he ought serve such sentence.  The Parole Board has monitored the progress of the offender and is better able than the Court to assess future disposition.  It has been responsible for his supervision over some years and the events of 15 April in no way reflect on the competence of quality of that supervision.  The Court has the benefit of a report from his parole officer.  That report is both comprehensive and helpful.  It discloses that the offender first became involved in the criminal justice system at the age of 10 and has spent approximately one-third of his life in some form of institution or prison.  The Court had specifically requested information on the progress or otherwise experienced by Devine during the period spent on licence.  It would appear that there was some basis for accepting that the offender has commenced to alter his life.  In 1992, whilst in prison, he married a woman with two children from a previous relationship.  Since his release on licence, he has treated the children as his own, moved away from his previous locality, turned a rented house into a home and begun to live a family life.  His parole was confirmed in July 1996, and in August he became the father of a baby boy.  In December of that year, his then parole officer had cause to be optimistic about progress.  These crimes were committed in April 1997.  The commencement of proceedings, in part, produced mood changes and despondency resulting in Devine seeking revocation of parole and a return to prison.  As a consequence, he was referred to a neurosurgeon and was found to suffer from a fluid build up on the brain, probably caused by a motor vehicle accident some years previous.  Remedial intervention and psychological treatment may well have proved significant factors in his continued change.  The Parole Board has had opportunity to revoke licence and has persevered because of the response manifested by conduct.  That response is summarised in the conclusion of the assessment provided to the Court in the pre-sentence report that:

"... although the accused has experienced some significant hiccups during his release on parole, he has demonstrated, beyond the expectations of most people who knew him before, that he is capable of fitting into a community, being a responsible husband, a family man, free of debt, free of drugs and drinking in a socially-responsible way.  What he has achieved, has not fallen in his lap, but has been the result of hard work and determination by him and his wife to make a success of their marriage and their family life.  His parents comment that he 'has put in a tremendous effort to get it right.'"

The crimes of which Devine has been convicted are not so serious as to require, in their own right, a sentence of imprisonment.  The predominant factor warranting a custodial sentence is the record of the prisoner.  Yet if he has commenced reform, then the significance of that factor is lessened.  The Court, in deciding to impose a suspended sentence, is not saying that the offender's parole should not be revoked, nor that he should not serve a prison term.  It is stating that the Parole Board is better able to make that decision and is better placed to make that judgment on the future relationship between its officers and the prisoner and to monitor future conduct.  That form of social control is better exercised at the discretion of the Board.  It ought be permitted to continue with its role.  In part, the position is analogous to the power of a court to fix a non-parole period.  Ordinarily, it is inadvisable for a court to fix a non-parole period of such a duration that there is little or no scope for a parole authority to exercise its own discretion as to prisoner management and disposition.  In R v Bain (1983) 9 A Crim R 303, a prisoner was sentenced to five and a half years' imprisonment, with a non-parole period of three and a half years. The effect of this was that the non-parole period ended just two months before the appellant would, in the normal course of events, be entitled to release by reason of remissions for good behaviour. On appeal, the court reduced the non-parole period to two and a half years, holding that for the minimum non-parole period to serve any useful function it should not equate with or be so close to the remission period as to make it unlikely that parole would be sought. Similarly, in R v Hughes (1973) 21 FLR 148, a prisoner was sentenced to five years' imprisonment with a non-parole period of three years. On appeal, the non-parole period was reduced to two years. The court stated at 150:

"In R v Eckhardt [1971] 1 SASR 347, at pp 351 - 352, this Court pointed out the desirability of imposing a sentence which would not in any way derogate from the important functions of the Parole Board, and which would also encourage the prisoner to strive for release upon parole. In this case we think that the length of the non-parole period fixed tends to discourage the appellant from working towards release on probation."

Parole affords utility in reformation and both personal and social control.  The court in R v Bain (supra) cited with approval the view expressed by Muirhead, Keely and Fisher JJ in Rich and Bourke (unreported, Federal Court of Australia, 7 September 1981) that:

"The parole scheme may be said to have several objectives. But undoubtedly one aim is to safeguard the community by ensuring that prisoners upon release will be subject to supervision and returned to life in the community with some prospects of successful integration within that community."

It is therefore undesirable for courts to limit the scope of the Parole Board in the exercise of its functions.

Nothing in this judgment is intended, in any way, to suggest the Parole Board ought not require Devine to serve all or any portion of the unexpired sentence.  But it ought exercise its discretion rather than have mandatory disposition imposed for a relatively minor matter such as this.  In exercising that discretion a relevant, although minor, consideration is that Devine has been in custody since 23 April.  The situation might well have been different had a more serious crime been committed.

Orders

1. That Robert Joseph Devine be sentenced to a term of imprisonment for a period of six months, such sentence to commence as and from 14 May 1998.

1. That the execution of the sentence be suspended upon condition that Robert Joseph Devine commit no crime or offence involving dishonesty or violence to the person or property for a period of three years.

The Victim Compensation Levy of $100 is to be paid to the Clerk of Petty Sessions, Hobart, within three months of the date of this order.