R v Eastham
[2008] VSCA 67
•29 April 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 446 of 2007
| THE QUEEN |
| v |
| DAVID EASTHAM |
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JUDGES: | BUCHANAN and NEAVE JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 April 2008 | |
DATE OF JUDGMENT: | 29 April 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 67 | |
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Criminal law – Sentence – Instinctive synthesis – Sentencing judge did not fix a sentence by proceeding in distinct stages – Parity – Failure to have regard to sentence imposed on a co-offender.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr M J Croucher | Victoria Legal Aid |
BUCHANAN JA:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of recklessly causing serious injury and one count of making a false document with the intention of inducing another to act upon it to that other person's prejudice.
After a plea, the appellant was sentenced to be imprisoned for a term of 14 months on the count of recklessly causing serious injury and to a term of eight months on the count of making a false document. The sentencing judge ordered that three months of the sentence imposed on the second count be served cumulatively on the sentence imposed on the count of recklessly causing serious injury. The total effective sentence was 17 months' imprisonment. It was ordered that 10 months of that sentence be suspended for a period of 24 months.
The appellant has been granted leave to appeal against the sentence.
The appellant was employed as a custody officer at the Melbourne Custody Centre. The offences arose from an assault upon a prisoner at the centre by the appellant. The prisoner, Turget Tankier, was removed from his prison cell by the appellant and five other custody officers and taken to a strip room. One of the officers, Bruce Shepherdson, was in charge of the others. Tankier was ordered to remove his clothes and hand them to a custody officer. He removed his jumper and dropped it on the ground. When he was asked to pick it up, he kicked at the jumper. This was interpreted as a sign of aggression, and the custody officers felled Tankier and handcuffed him. While he was on the ground, the appellant kicked his upper body. He kicked Tankier two or three times in the stomach. The appellant stopped kicking the prisoner when Shepherdson said, 'That's enough.'
The sentencing judge found that the appellant did not spontaneously over-react to a perceived provocation, but sought to punish the prisoner for his insolence.
Over the next 24 hours, Tankier's health deteriorated and he was taken to hospital, where eventually his spleen was removed. The appellant prepared a report on the incident, which included a statement that Tankier had been taken to the strip room. The other custody officers also prepared reports. Shepherdson told the appellant and his fellow officers to remove all references to the strip room from their reports. The appellant and the others obeyed him.
Shepherdson pleaded guilty in the County Court to one count of making and one count of using a false document. He was sentenced to be imprisoned for a term of nine months, and the term was wholly suspended.
The appellant is 26 years old. He has no prior convictions. The appellant had been employed as a prison officer for some two-and-a-half years before he committed these offences and hoped to make a long-term career as a prison officer. As a result of the offences, the appellant was sacked, and at the time he was sentenced he was working as a labourer.
The first ground of the appeal was that the sentencing judge erred in sentencing the appellant on the basis that a term of imprisonment to be served immediately was required unless there were exceptional circumstances.
In the course of his sentencing remarks, his Honour said:
It is no part of a sentence of imprisonment, or being remanded in custody, that prisoners are to be subjected to violence by those who are entrusted with caring for prisoners and monitoring and maintaining the prison systems. There can never be any justification for a violent attack on a helpless prisoner. If the community cannot rely on prison officers to exercise restraint and act within the law, then our prison systems will become jungles. It must be made crystal clear that criminal conduct of this nature will attract a term of imprisonment to be served immediately unless there are exceptional circumstances. In my view there are no exceptional circumstances in this case that would justify any other course.
In the opening sentences of the paragraph, the sentencing judge described - appropriately, in my view - the circumstances which rendered this crime of recklessly causing serious injury particularly grave. I would construe the last two sentences as reflecting the sentencing judge's view of the seriousness of the offence.
A sentencing judge is required to synthesise the circumstances of the offence in question and its effects with the personal circumstances and antecedents of the offender, to produce a sentence which reflects and promotes the aims of sentencing in a manner appropriate to the offence and the offender. In my opinion, that cannot be done by proceeding in stages; that is, arriving at a position as a result of looking at some only of the relevant circumstances, which will determine the result unless it is displaced by other circumstances. Such an approach is a variant of the two-stage approach criticised in Wong v The Queen[1]. In my view, adopting a prima facie position that could only be dislodged by finding exceptional circumstances gives rise to a real danger that a sentencing judge following such a course will not arrive at a single result which takes due account of all the relevant factors.
[1](2001) 207 CLR 584 at 611.
In this case, however, I do not think that the sentencing judge constructed his sentence in such a fashion. The paragraph of the sentencing remarks I have quoted is not to be seen in isolation. When the sentencing remarks are read as a whole, it is evident that the sentencing judge was at pains to identify - and, I would infer, consider - all the relevant sentencing considerations. I would construe the impugned passages as amounting to no more than an observation that generally offences of this nature require the imposition of an immediate custodial sentence in the absence of exceptional circumstances.
The second and remaining ground of the appeal is as follows:
2. The learned sentencing judge erred:
(a)in failing, before passing sentence, to advise counsel of the information he had learned of the sentence imposed on the co-offender Mr Shepherdson by another judge and to invite submissions with respect to parity in light of that sentence;
(b) in imposing a sentence on count 2 and/or an order for cumulation of that sentence which offends parity when regard is had to the sentence imposed on Mr Shepherdson.
In the course of the appellant's plea, the prosecutor informed the sentencing judge that Shepherdson had pleaded guilty before Judge Hart on a count of making and using a false document and was due to be sentenced the next day. Two days later, when the sentence imposed upon the appellant was announced, his Honour said, in the course of his sentencing remarks, that Shepherdson had been sentenced to a term of imprisonment of nine months which was wholly suspended. The prosecutor correctly advised the sentencing judge that Shepherdson had been sentenced to an intensive correction order, not a wholly suspended sentence.
It was submitted on behalf of the appellant that in failing to advise counsel for the appellant of the information he had learned of the sentence imposed upon Shepherdson and invite submissions in respect of parity in the light of that sentence, the sentencing judge denied the appellant procedural fairness.
The complaint that the appellant was denied natural justice depends upon whether the sentencing judge regarded parity between the appellant's sentence and that imposed upon Shepherdson as relevant. It is clear from the transcript of the plea that the sentencing judge did not think that parity was relevant. He said to counsel for the appellant:
There is no allegation against the others that they attacked this man. For you to run parity, again unless I've got it dreadfully wrong, there has got to be commonality of facts. Parity doesn't apply in the circumstances of this case. I have to look at the offences that the people have been dealt with.
Accordingly, this was not a case where a sentence was imposed wholly or partly on the basis of material which had not come before the sentencing judge in open court.[2]
[2]Compare R v Wise [2002] VR 287.
The sentencing judge's remarks disclose a different error, namely, that the sentencing judge failed to have regard to the sentence imposed upon a co-offender. I think the point is emphasised by the fact that Shepherdson, who was sentenced after pleading guilty to one charge of making a false document and one count of using a false document, who was senior to the appellant in rank and years, and who ordered the appellant to doctor his statement, received a sentence only one month greater than that of the appellant. I consider that the treatment of the appellant compared
with that of Shepherdson would have left the appellant with a justifiable sense of grievance.
For the foregoing reasons, I am of the opinion that the sentencing judge fell into error. The question then becomes whether I consider a different sentence should have been passed.[3]
[3]See s 568(4) Crimes Act 1958.
The appellant kicked a prostrate man held by others. That man was in the appellant's custody and care: the appellant was responsible for his welfare. The attack was not a spontaneous reaction to provocation but the infliction of punishment by someone who had no authority to impose it. If persons in the position of the appellant do not exercise restraint and act lawfully, they must expect condign punishment.
I would impose the same sentence on that count. On the count of making a false document, however, I would re-sentence the appellant to a term of four months' imprisonment to be served concurrently with the sentence on count 1, creating a total effective sentence of 14 months' imprisonment. The appellant has spent five months in prison. I would suspend all that remains of the sentence for a period of two years.
NEAVE JA:
I agree.
LASRY AJA:
I also agree.
BUCHANAN JA:
The orders of the Court will be as follows:
1. The appeal against sentence is allowed.
2.The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 14 months on the count of recklessly causing serious injury and a term of four months' imprisonment on the count of making a false document.
3.The sentences are to be served concurrently by operation of law, making a total effective sentence of 14 months' imprisonment.
4.It is ordered that all but 159 days of the sentence be suspended for an operational period of two years.
5.The sentences are deemed to have been imposed and the operational period to have begun on 23 November 2007.
6.It is declared that the period of 159 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
Mr Eastham, we have in effect rejigged the sentence which was imposed upon you below, with the effect that the remaining part of it will be suspended from today, which means that you will be released today. But you will, for a period of two years from the date on which the original sentence was imposed on you, have hanging over your head, as it were, the remaining part of the sentence; so that if you commit another offence which is punishable by the imposition of a term of imprisonment, whether such a term is actually imposed or not, you become liable to be dealt with again in respect of the remaining part of the sentence which has been suspended. Do you understand that?
APPELLANT:
Yes, I do.
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