R v Devries [2005] VSCA 95

CHARLES, J.A.:

1 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.

2 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.

3 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.

4 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.

5 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 a.m., however, while Owen was playing pool in his unit and talking to other prisoners, the applicant approached him from behind carrying a prison issue bread and butter knife which had been sharpened. The applicant stabbed Owen in the right side of the chest from behind, and, when he turned around, then stabbed him in the cheek. Owen tried to protect himself from the attack and sustained a further blow to his neck. Owen slipped whilst trying to get away but managed to get back on his feet and punch the applicant. Owen pleaded for assistance from other prisoners and a further struggle ensued between the two men before prison authorities intervened.

6 The victim was subsequently taken to the Central Gippsland Health Service. He was found to have suffered the following injuries during the attack: a cut to the right side of the face near the mouth; a small stab wound to the base of the neck; a stab wound to the ribcage area under the right arm; stab wounds to the right and left shoulder blades; a stab wound to the lower right side of the back; and a punctured lung.

7 On 12 August 2003 the victim was admitted to St Vincent's Hospital where microscopic surgery was performed to open and remove blood and blood clots from his chest and to insert a chest drain. He remained in hospital for five days with the chest drain before being discharged.

8 During the plea both counsel drew the judge's attention to s.16(3) of the Sentencing Act 1991 which provides that -

"Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence must unless otherwise directed by the court because of the existence of exceptional circumstances be served cumulatively on any uncompleted sentence or sentences of imprisonment or detention in a youth training centre or youth residential centre."

It was not in dispute that the applicant was being sentenced for a prison offence and it was not argued by his counsel that any exceptional circumstances existed.

9 During the plea the applicant's counsel submitted first that he had offered to plead guilty at an early stage and that it was to the applicant's credit that he had done so while a prisoner in a correctional facility. It was argued that he was remorseful for his conduct, and that in circumstances where there was a confrontation between the victim and the applicant's cell mate, the applicant had taken a knife with him to confront the victim, the latter being a strong man larger than he. Particular emphasis was placed on the fact that the applicant had spent a considerable part of the previous ten years in gaol and that he was finding it increasingly difficult to spend time in custody. A prime motivating factor for him was said to be that he had an eight-year-old son, Zac, who was now living with his maternal grandparents. The applicant, it was said, spoke to his son by telephone every week and maintained a very, very close relationship with him. He had while in prison obtained work as a mid-welder and a qualification for this occupation. He hoped to seek employment as a welder or as a forklift driver upon his release. It was said that he had reached the age of 30, that he wanted to put the past behind him and make something of his life.

10 The judge in sentencing reasons accepted that the applicant was entitled to a discount for his plea of guilty. His Honour took into account that in consequence of the offence the applicant had spent six months in solitary confinement, the first three weeks with the loss of all privileges. His Honour also noted that the applicant had spent a considerable part of the last ten years in custody and in particular that he was due for release from his current sentence in February 2005, having been continuously in detention for the past three years. His Honour also took into account that the applicant had obtained qualifications whilst in prison and that he wanted to put his past behind him, bearing in mind the rearing of his son, Zac. Maintenance of discipline within the prison system was, however, an important consideration and, as his Honour said, in sentencing for an offence of this type, the punishment must acknowledge the need to deter other prisoners who may be of like mind. As his Honour also put it, the applicant's offending had been driven by the base inclination to exact retribution, he had armed himself with a knife, chosen the moment, and recklessly inflicted serious and potentially life-threatening injuries.

11 The first ground argued in relation to the application for leave to appeal was that the judge erred in failing to apply s.14 of the Sentencing Act and fix a new single non-parole period in respect of both the new sentence and the existing sentence. Mrs Quin for the Crown properly conceded that the judge should have fixed a new non-parole period and that this Court is now required to do so. Indeed, the effect of the judge's sentence seems to me to be that the applicant became subject to a head sentence of ten years, and a non-parole period of eight years and nine months. Section 16(3) required the new sentence to be served cumulatively upon the sentence the applicant was then serving. The sentence of imprisonment was, of course, the head sentence imposed, whereas a non-parole period is merely the period fixed during which there shall be no eligibility for parole; see R v. Rich (No.2) [1] and R v. Stares [2]. It surely cannot have been the judge's intention that the applicant serve an effective non-parole period of eight years and nine months, but in any event we were told this morning that the prison authorities had interpreted the sentence as meaning that the applicant was to serve a minimum of six years and nine months. The judge's intention, however, may well have been that the applicant's non-parole period be ext extended only for a further three years and six months.

12 It follows that sentencing error has been established and this Court must re-exercise the discretion.

13 The sole other ground of the application claims that the sentence, the extent of the order for cumulation, the resulting total effective sentence and the non-parole period are all manifestly excessive and infringe totality. Mr Croucher for the applicant argued that the order for total cumulation had the consequence that no or very little weight can have been given to totality. He put it that a total sentence of ten years' gaol overstates the total criminality involved in the applicant's offending and understates factors in mitigation, such as his plea of guilty, the punishment suffered in the prison system, his efforts towards rehabilitation and his personal circumstances. It was also argued that a non-parole period of three years and nine months is too high both in absolute terms and as a proportion of the head sentence.

14 Mrs Quin relied on the fact that the commission of this offence by the applicant was a prison offence, which must be served cumulatively on the sentence then being served since no claim to exceptional circumstances was shown to exist. The judge took into account all matters argued in mitigation of the plea. The applicant had an extensive prior criminal history for violent offences and his prospects for rehabilitation were not good. The offence involved a premeditated, unprovoked violent attack with a sharpened knife, motivated by a desire to punish the victim for previously complaining to the authorities regarding the conduct of the applicant's cell mate. The victim had suffered serious, life-threatening injuries including a punctured lung, and required hospitalisation. This was, therefore, a serious example of the offence, the maximum penalty for which was 15 years' imprisonment.

15 Consistently with s.16(3) of the Sentencing Act, the judge made it clear that the sentence he imposed was to be served cumulatively upon the sentence the applicant was then serving. He had previously been sentenced on 2 September 2002 (for armed robbery and assault) in the County Court at Melbourne to be imprisoned for five years with a non-parole period of three years. There was some confusion during the plea as to whether there had been presentence detention, but we were told today that there was in fact a declaration of 178 days spent in detention and, accordingly, that the non-parole period was due to expire in late February 2005, about five months after the sentence under appeal was imposed.

16 The applicant had a very bad record for violence and the offence committed was indeed serious. There was little evidence, as the judge said during the plea, of real prospects of rehabilitation, a statement which the applicant's counsel did not really challenge. But he had pleaded guilty and had been punished within the prison system. In all these circumstances the actual sentence proposed by the judge was plainly within range, certainly not manifestly excessive.

17 The appeal should accordingly be allowed. I would leave standing the head sentence imposed by the judge. In fixing a new single non-parole period, this must, I think, date from the time the applicant was first sentenced (2 September 2002). Leaving standing any days spent in detention to which he was then entitled, I would fix a new single non-parole period of six years and six months, the effect being to extend his previous non-parole period by three years and six months.

VINCENT, J.A.:

18 I agree with the disposition of this matter proposed by the learned presiding judge. I do so for the reasons advanced by him.

19 However, I would add a few comments of my own relating to the seriousness with which the employment of violence within the prison system must be viewed.

20 Persons incarcerated in our gaols are by reason of the circumstances of their confinement required to live in close proximity to each other, often for lengthy periods, and often in situations of some difficulty. For a myriad of reasons, including the development of understandable frustrations and stresses, as well as the circumstance that a significant percentage of those imprisoned at any one time are likely to be of a violent disposition or emotionally labile, tensions will arise and the risk of violence is ever present.

21 Notwithstanding those realities, it is no part of a sentence of imprisonment that the individual subject to it is to be required to live in fear or be subject to violent physical attack. Whatever interpersonal problems might arise, there can never be any justification for the use of violence against a fellow prisoner on the basis that he has offended in some way against prison culture by seeking the assistance of the authorities in the resolution of a problem that has arisen or in order to secure his own safety.

22 It hardly needs to be said that our prisons must not become jungles with their own subculture in which predators can enforce their will in the confidence that those who are subject to it will be too fearful to do anything about it or in which the only practical response is to take equally violent retaliatory measures. I note that this concern was appreciated by the sentencing judge. Neither can it be accepted that there is a separate gaol culture that somehow mitigates the employment of force as a method of settling disputes.

23 Obviously the courts must play their part in endeavouring to ensure that no such situation develops and through the sentences that are handed down discourage the use of force in this way. In other words, it must be crystal clear to all concerned that the conduct of the kind in which the applicant engaged will not be tolerated and will almost certainly attract the imposition of condign punishment. Nor in the present matter can the applicant's appalling history of violence be disregarded.

24 I agree with the conclusions of the learned presiding judge and I concur in the reasons and observations of both the learned presiding judge and Vincent, J.A.

CHARLES, J.A.:

25 The orders of the Court today are as follows. The application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is allowed. The Court confirms the sentence of five years' imprisonment imposed on 7 October 2004.

26 Pursuant to s.14 of the Sentencing Act 1991, the Court fixes a new single non-parole period dating from 2 September 2002 of six years and six months.

27 The Court declares that 178 days be reckoned as at 2 September 2002 as the period already served under the sentence and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

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[1] (2002) 4 V.R. 155 at [104]

[2] (2002) V.R. 314 at [24]