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R v Devries

R v Devries

Case [2005] VSCA 95 21 April 2005

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 263 of 2004

THE QUEEN

RICHARD STEPHEN DEVRIES

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JUDGES:	CHARLES and VINCENT, JJ.A. and OSBORN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2005
DATE OF JUDGMENT:	21 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 95

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CRIMINAL LAW - Sentence - Causing serious injury recklessly - Prison offence - Relevant considerations in sentencing - Non-parole period - New single non-parole period to be fixed upon further sentencing of offender - Commencing date of new non-parole period - Sentencing Act 1991 (No.49) ss.14,16(3).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr M.J. Croucher	Hale & Wakeling

CHARLES, J.A.:

On 30 September 2004 the applicant pleaded guilty in the County Court at Melbourne to one count of causing serious injury recklessly. The maximum penalty was 15 years' imprisonment. The applicant admitted 87 prior convictions from twelve appearances in the Magistrates' Court and two appearances in the County Court. These prior convictions include numerous offences involving violence, and, as the sentencing judge said, his was a particularly disturbing criminal background for the offence for which he was being sentenced. His prior convictions included two offences of armed robbery, one of robbery, one of attempted robbery, six counts of causing injury recklessly and one count of causing serious injury recklessly, as well as various firearms offences.

After a plea the judge sentenced the applicant to five years' imprisonment and ordered that he serve a minimum period of three years and nine months before becoming eligible for parole. It is clear from his Honour's reasons that the sentence was intended to be served cumulatively on the sentence the applicant was then undergoing.

The circumstances giving rise to the offence were as follows. On 20 July 2003 the applicant and Peter Owen were both prisoners at Fulham Correctional Centre, both held in the same unit. At approximately 3 p.m. that day Owen made a complaint regarding a fellow prisoner, Carl Gruber, who was the applicant's cell mate. After making the complaint, Owen and Gruber were observed arguing. Owen then returned to his cell. Gruber had a grievance against Owen related to a painting which Owen had bought from a fellow aboriginal prisoner and claimed that Owen owed money for the painting. Gruber went to Owen's cell armed with a metal spike but Owen told him to leave the cell. Owen went to the supervisor's office and prison authorities decided that they should place both Owen and Gruber in the Management Unit for the night to avoid any trouble.

The next day Owen was released from the Management Unit. Later that day the applicant approached Owen and asked him why he had complained about Gruber, but Owen denied having made any complaint.

On 22 July the prison authorities remained concerned about Owen's welfare and had resolved to place him in the Management Unit at lunchtime for his own protection. At 10.50…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Devries

Details

AGLC: R v Devries [2005] VSCA 95
Case: [2005] VSCA 95
Decision Date: 21 April 2005

CaseChat Overview and Summary

The case of R v Devries involved the sentencing of the defendant for an offence committed in prison, resulting in serious injury to another inmate. The case was heard in the Supreme Court of Victoria, where the court had to determine the appropriate sentence for the defendant, taking into account the principles set out in the Sentencing Act 1991. The defendant was found guilty of causing serious injury recklessly while in prison, and the primary legal issues for the court to decide were the appropriate non-parole period and the commencing date of the new non-parole period for the defendant's sentence.

The court considered the relevant factors for sentencing under the Sentencing Act 1991, such as the nature and circumstances of the offence, the defendant's culpability, and the need for the sentence to deter the defendant and others from committing similar offences. The court also considered the impact of the offence on the victim and the community. The court acknowledged the defendant's guilty plea and his remorse, but also recognised the seriousness of the offence and the need for general deterrence. The court decided to fix a new non-parole period upon further sentencing of the offender, and determined the commencing date of the new non-parole period in accordance with the provisions of the Sentencing Act 1991.

The court determined that the new non-parole period should commence from the date of the defendant's sentencing for the current offence, rather than from the date of the previous non-parole period. This decision was based on the provisions of section 16(3) of the Sentencing Act 1991, which provides that the new non-parole period should commence from the date of the current sentencing, unless the court decides otherwise. The court also took into account the need to ensure that the defendant's sentence was proportionate to the seriousness of the offence, and that the sentence provided an appropriate level of deterrence.

In conclusion, the Supreme Court of Victoria sentenced the defendant to a new non-parole period for the offence of causing serious injury recklessly while in prison. The court considered the relevant factors for sentencing under the Sentencing Act 1991 and determined the commencing date of the new non-parole period in accordance with the provisions of the Act. The court's decision reflects the need to balance the interests of the defendant, the victim, and the community in the sentencing process, and to ensure that the sentence is proportionate to the seriousness of the offence.

Orders