Priestley v The Queen [2011] VSCA 378

1 I will ask Harper JA to deliver the first judgment.

2 The applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury. He was sentenced on 19 October 2010 to five years' imprisonment with a nonparole period of three years. The maximum penalty for this offence is 20 years' imprisonment.

3 On 10 June 2011, I granted the appellant leave to appeal against sentence on the two then proposed grounds, namely:

(a) the appellant should be resentenced as a result of being required to serve 12 months owed in respect of his previous parole (which he had breached); and

(b) the sentencing judge erred in failing to take into account, or not being apprised of, the fact that the appellant was serving a sentence as a protection prisoner.

4 The Crown conceded, on 10 June, that these grounds were reasonably arguable.

5 On 30 May 2010, the appellant and Bradley Coleman went to the victim's flat to buy some cannabis. They found the victim, Adriene Kruijer, in his living room watching television. There was a small amount of cannabis in a bag on the coffee table, but that was insufficient to meet the visitors' request to purchase a quarter of a bag. Mr Kruijer said he would get some more from the bedroom. The two men followed the victim into the bedroom, where Coleman told Kruijer that they wanted cash as well as the drugs and proceeded to search the bedroom wardrobe for more drugs. Without any provocation from the victim, the appellant then produced a pocket knife and stabbed Mr Kruijer once to the left side of his stomach. Coleman, realising that the appellant had stabbed the victim, fled the scene, taking the victim's mobile telephone as he left. The appellant followed. One of them also took the bag of cannabis, which they later smoked.

6 Without his telephone, the victim was unable to call for help. Although in considerable pain and bleeding from his stomach, he struggled to his car and drove to a local shopping centre, where he was able to call the police and an ambulance. He then returned to his flat, where he was treated before being taken to Geelong Hospital. He eventually underwent surgery to repair a perforation in the anterior distal colon, which was found to be causing internal bleeding. He was discharged from hospital 10 days later.

7 After speaking to the victim at his flat while he was being treated by the paramedics, the police conducted a door knock of the local area and found Coleman hiding in a bedroom wardrobe in a flat in the same street. They apprehended the appellant in the kitchen and found the 7centimetre long pocket knife in his jeans pocket. The appellant admitted the two men had gone to the victim's flat to purchase some cannabis on credit, but asserted that a fight started. He admitted that he punched Mr Kruijer, and claimed that Coleman did as well, but he maintained that it was Coleman who stabbed the victim. He said that when he returned home, Coleman had handed him the washed pocket knife, whereupon he placed it in his (Priestley's) pocket.

8 The offending occurred while the applicant was on parole. That fact was taken into account by the sentencing judge as an aggravating factor. However, at the date of sentence, the parole had not been cancelled. The sentence of five years' imprisonment was accordingly fixed without reference to the decision of the Parole Board about the outstanding parole. His Honour noted that the appellant had some five weeks of parole to serve. No exceptional circumstances having been established for the purposes of s 16(3B) of the Sentencing Act 1991, his Honour ordered that the sentence he imposed be served cumulatively on any period of imprisonment to be served as a result of cancellation of parole.

9 The decision of the Board has since become known. It is that the appellant be required to serve the unexpired balance of his earlier sentence, namely, 12 months. The result is that the total effective sentence is six years. This information is, on an appeal against sentence, to be treated as fresh evidence.[1]

10 The Crown agrees that this information is to be considered as fresh evidence on the question of totality. However, it points to the observations of Redlich JA in R v Mangelen.[2] His Honour there said:

Nor should it be assumed that this Court must intervene or impose a different sentence simply because the parole term has been enlivened and added to the sentence which is the subject of the appeal. Such an approach wrongly assumes that the sentence that has been imposed cannot be appropriate once the offender is required to serve further time in custody. A court may conclude that the sentence remains the correct sentence or is within the range of sentences that are reasonably open where the offender is required to serve a parole sentence. That was the view reached by this Court in decisions such as R v Mourad, R v Cochrane and R v Scholes. Indeed, it may transpire that the circumstances in which this Court will feel compelled to interfere may prove to be uncommon.[3]

11 These observations must be seen in the light of s 16(3B) of the Sentencing Act. That section provides that, where an offender commits an offence whilst on parole, the sentence imposed for that offending should, unless there are exceptional circumstances, be cumulative upon any other sentence imposed. But, as the Crown submitted and as I accept, there are no exceptional circumstances here that would warrant departing from the policy of the section. I note that in R v Mangelen, Redlich JA further observed that:

This Court must ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B). ...

... Totality is not a principle to be applied without regard to the components of the instinctive synthesis. The parole sentence may impact on the sentence to be imposed but the consideration of totality does not override nor should it engulf other critical sentencing considerations.[4]

12 Even with the added parole time, the total effective sentence is, in my opinion and in view of the total criminality involved, still within the range reasonably open. In conformity with R v Mangelen, therefore, this ground must fail.

Ground 2 (The effect of being a protected prisoner)

13 The sentencing judge was not provided with information about the appellant's status as a protected prisoner, or the ramifications of that designation, during the course of the hearing of the plea. Subsequently, an affidavit was sworn on 2 June 2011 by Margaret Bourke, a solicitor employed by Victoria Legal Aid. In that affidavit, she deposed to the fact that the appellant is in protective custody, a matter the importance of which she was, at that time, unaware. For that reason, it was not brought to the attention of the sentencing judge during the course of the plea hearing.

14 As I noted during the leave application, the effect of the affidavit material is that the appellant is subject to the strict regimes that apply to prisoners in protection. These vary in strictness but commonly have the effect that those subject to them do not have the same access to programs, their lockdown period is far greater, they cannot play sport with anybody within the mainstream, and they are the subject of taunts and threats and so on, as, in this case, deposed to by Ms Bourke.

15 The Crown points out that the question is whether a different sentence should be substituted. That requires an assessment of the actual effect on the appellant of his classification as a protected prisoner. The appellant had been classified on earlier occasions while in prison on this basis. He knew therefore, the Crown submits, that he was at risk of being placed in protective custody if he was caught for the subject offending. Further, the total sentence is well within the range for this offence, even taking into account the additional hardship which will flow from the circumstances of his imprisonment; and, in support of that submission the Crown pointed to the

aggravating circumstances which surround this serious instance of the offence of intentionally causing serious injury.

16 Despite the seriousness of this offence, the Crown submissions cannot, in my opinion, be accepted. The issue of protection must be taken into account, despite the appellant's past history; and the result must, in my opinion, be an adjustment of the sentence to reflect the fact that the conditions of the appellant's incarceration will be more severe than would be the case were he not to be a protection prisoner. I would, on this point, allow the appeal.

17 I would resentence the appellant to four years' imprisonment and fix a nonparole period of two years and six months.

2. The sentence passed below is set aside and in lieu thereof, the appellant is sentenced to be imprisoned for a term of four years and a minimum term of two years and six months is fixed before the appellant is to be eligible for parole.

3. The disposal order made in the court below is confirmed.

4. It is declared that a period of 537 days, not including today, is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

[1] R v Alashkar [2007] VSCA 182; (2007) 17 VR 65.

[2] [2009] VSCA 63, [32] and [35].

[3] R v Mangelen [2009] VSCA 63, [32] (footnotes omitted).

[4] Ibid [35]-[36] (footnotes omitted).