R v Stevens [2009] VSCA 81

Court of Appeal (Vic)|2009-05-01|Before: MAXWELL P, VINCENT JA and HARGRAVE AJA

CRIMINAL LAW - Sentence - Theft - Armed robbery - Conspiracy to commit armed robbery - Unregistered firearm - Attempt to pervert the course of justice - Threat to kill - Crown concession that trial judge in fixing non-parole period was in error - Circumstances of the appellant - Whether strict prison regime too burdensome - Appellant 'protection prisoner' - Prison conditions - Parity between co offenders - Sentence reimposed - Appeal allowed.

1 The appellant pleaded guilty in the County Court, on 29 August 2006, to the following counts contained in Presentment No: C0404343.1 ('the first presentment'):

Theft - counts 1 & 5

Armed robbery - count 2

Incitement to commit arson - count 3

Conspiracy to commit armed robbery - count 4

Prohibited person carrying an unregistered firearm - count 6

Attempt to pervert the course of public justice - counts 7 & 8.

2 He subsequently pleaded guilty, on 31 August 2006, to three counts contained in Presentment No C0605220.1 ('the second presentment'). They comprised two counts of making a threat to kill[1] and one count of attempting to pervert the course of public justice.

3 The appellant has an extensive criminal history involving 97 prior convictions and 17 court appearances between December 1986 and September 2004, and arising for the most part from his commission of offences of dishonesty, including burglary, theft, attempted theft, handling stolen goods and going equipped to steal. Significantly, for present purposes, he has been convicted on three separate occasions for armed robbery, one for his possession of a pistol and one relating to the possession of a regulated weapon.[2]

4 After hearing a plea in mitigation of penalty, the judge, on 17 October 2006, imposed the following sentences for the offences in the first presentment:

Count 1 - theft - 6 months' imprisonment, 3 months to be served cumulatively on count 2

Count 2 - armed robbery - 5 years' imprisonment

Count 3 - incitement to commit arson - 12 months' imprisonment, 6 months to be served cumulatively on count 2

Count 4 - conspiracy to commit armed robbery - 2 years' imprisonment, 12 months to be served cumulatively on count 2

Count 5 - theft - 6 months' imprisonment, 3 months to be served cumulatively on count 2

Count 6 - prohibited person carrying an unregistered firearm - 12 months' imprisonment, 6 months to be served cumulatively on count 2

Count 7 - attempt to pervert the course of public justice - 12 months' imprisonment

Count 8 - attempt to pervert the course of public justice - 12 months' imprisonment, 6 months to be served cumulatively on count 2.

These orders created a total effective sentence of 8 years' imprisonment in respect of which his Honour fixed a period of 6 years' imprisonment before the appellant was eligible to be released on parole.

5 His Honour imposed the following sentences for the offences in the second presentment:

Count 1 - threat to kill - 12 months' imprisonment, 3 months to be served cumulatively on count 3

Count 2 - threat to kill - 12 months' imprisonment, 3 months to be served cumulatively on count 3

Count 3 - attempt to pervert the course of public justice - 12 months' imprisonment.

These orders created a total effective sentence of 18 months. The judge directed that nine months be served concurrently with the effective sentence for those covered by the first presentment. Nine months of this sentence was therefore cumulative on the other sentence. This amounted to a new total effective period of incarceration of 8 years and 9 months, of which 6 years and 9 months had to be served before the appellant would become eligible to be released on parole.

6 Leave having been granted by a judge of this Court, he has appealed against the sentences imposed upon him.

7 Counsel appearing for the Crown conceded at the outset that the judge fell into error in the manner in which he fixed the non-parole period to be served. As we have mentioned, a period of six years was fixed as the non-parole period for the offences contained in the first presentment. The partial order for concurrency of the sentence imposed for the offences in the second presentment effectively added nine months to that non-parole period.

8 Section 11(4) of the Sentencing Act 1991 directs that, where a judge sentences an offender to be imprisoned in respect of more than one offence, any non-parole period fixed must be 'in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed'. The argument advanced on behalf of the appellant, which counsel for the Crown accepted, was that the judge appeared to have adopted a mechanistic approach to the fixing of the non-parole period. The sentencing reasons gave no indication that he had directed his attention to the appropriateness of the relationship thus created between the aggregate period of imprisonment to which the appellant was subject and the non- parole period fixed.[3] It was further conceded that this approach may have affected the outcome in that the resultant possible maximum parole period could be viewed as relatively, even perhaps inappropriately, short when assessed by reference to common sentencing practice.[4] In that situation, it was unclear whether the judge had applied the correct principles.

9 Clearly, the orders creating the effective non-parole period on their face did not comply with s 11(4) and required correction. Accordingly, the Court concluded that the appeal should be allowed and the exercise of sentencing discretion reconsidered. The hearing then proceeded on that basis.

10 The circumstances relating to the commission of the offences were outlined in a written summary of evidence tendered in the Court below, the substance of which was then opened orally by the prosecutor. The following is an edited version of his description -

The eight count presentment

The [appellant] is presented on an eight count presentment in respect to three brackets of offences:

(a) Counts 1-3 where it is alleged that the [appellant] together with Paul Gary Nicholls used a stolen motor vehicle, Count 1, in the course of an armed robbery at the Chelsea Height Post Office and Lotto, Count 2. Subsequent to the armed robbery it is alleged that the [appellant] incited Trevor John Drowley to burn out and destroy the stolen motor vehicle the subject of Count 1. That makes that Count 3.

(b) Counts 4-6 relate to a conspiracy with Benjamin Brian Connell to perform an armed robbery on the post office at Doveton. It is alleged that [the appellant] and Connell had agreed and planned to perform an armed robbery, Count 4, and to that end used a stolen motor vehicle, Count 5, and then set off the premises planned to be the subject of the armed robbery in a stolen car and had with them balaclavas, gloves, a sawn off shot gun and ammunition, Count 6.

(c) Count 7-8 relate to an attempt by the [appellant] to pervert the course of public justice. His former girlfriend Janita Lee had made a statement to the police which incriminated [the appellant] in the armed robbery at Doveton, that should be the conspiracy to perform an armed robbery at Doveton. At that time when [the appellant] was in custody he made a series of phone calls to both Westwood,[5] Count 7, and Nicholls, Count 8, in which he directed them to do a series of acts designed to stop Lee from giving the evidence provided in her statement.

Your Honour, I now go to circumstances related to each of those brackets of offences.

Counts 1-3

On 3 April 2004 [the appellant] and Nicholls had driven to the Safeway Chelsea car park and whilst there stole a Holden Commodore Sedan belonging to Glenda Ruby Kenda.

They drove that vehicle to an associate (Merlino's) unit and parked in his garage and changed into clothes including balaclavas, baseball caps, glasses and jackets in order to disguise themselves for a subsequent armed robbery. Then [the appellant] and Nicholls drove the stolen vehicle to the vicinity of the Chelsea Heights Post Office and Lotto. [The appellant] was armed with a sawn off double barrel shotgun when he committed the armed robbery. [The appellant] at all times had the firearm, Count 2, and Nicholls collected the money from the shop staff.

Your Honour, I will now just read in part of the statement of Mr Nicholls:

[The appellant] pulled out a shotgun. It was cut down at both ends. It had lace running from the butt to the trigger. That was set up so that when he put the lace over his shoulder he didn't need to put his finger on the trigger for the gun to go off. All he had to do was push the gun forward and the trigger would go off. I could recall that [the appellant] had the gun set up that way because he had a hand injury from cutting himself when he ran through a plate glass window to get away from a couple of drug dealers. [The appellant] had been arrested for that and taken to hospital. It was only a week or so later that we did this job. [The appellant] then loaded the gun with red shotgun shells. I remember that because to this day he still has a red shotgun shell stuck under the handbrake of his Commodore.

The significance of that is that the gun was in fact loaded at the time of the Chelsea armed robbery and this sort of make-shift trigger arrangement had been implemented, had been installed.

[The appellant] then yelled out 'everyone lay down' pointing the gun at everyone who was in the shop. At that stage there were nine or 10 customers in the shop and every one of them started to get to ground.

Another customer heard somebody yell out 'get on the fucking ground or I'll blow your head off'. 'The guy with the weapon was carrying a double barreled shotgun.' The gun was about 50 centimeters long, sawn off, so the barrel was about 20 centimeters long with side by side barrels. A shop customer who had been in the army many years ago and had experience with guns thought it was real and looked like a hunting gun. [The appellant] pointed the gun at customers and said to a lady who looked really scared 'stay where you are or you'll be shot.' A female customer, Amanda Robinson, lay on the road and covered her three year old daughter with her body, rolling her into a ball.

They left with $4,001. They then drove the stolen vehicle to Merlino's garage, changed clothes and drove to Wonthaggi in [the appellant's] vehicle leaving the stolen vehicle behind. And at the residence of an associate of [the appellant] in Chelsea, Nicholls got $600 cash for his part in the robbery.

Drowley had previously moved in with Nicholls at his Wonthaggi address during the time he met [the appellant]. He was not involved with the planning or execution of the armed robbery but could sense, on what he had seen, that 'something was going on', although he didn't want to get involved. He was in Wonthaggi when [the appellant] and Nicholls arrived after the armed robbery and Drowley could tell they had been up to something but at that stage didn't know what it was. One or two days later [the appellant] asked Drowley to drive him back to Melbourne to pick up the stolen vehicle.

On 6 April 2004 Drowley and [the appellant] drove back to Merlino's unit. They had with them a five litre can of petrol and [the appellant] instructed Drowley to burn the stolen car. Drowley drove the stolen car to a car park in Chelsea, dowsed the car in petrol and set it alight. He later rang [the appellant] and the vehicle and its contents were subsequently located by police but totally destroyed to the value of over $2,450. (Count 3).

Your Honour, I now go to matters concerning the second bracket of offences and that is counts 4 - 6.

On 21 May 2004 [the appellant] conspired with another co-offender Benjamin Brian Connell to commit an armed robbery at the post office at Doveton. [The appellant] and Connelly used a stolen motor vehicle to travel to the vicinity of the Doveton post office where they set off [sic] the premises in the stolen car and had with them balaclavas, gloves, sawn off shot gun and ammunition.

The evidence of the co-offender Connell directly implicates [the appellant] in all aspects of the conspiracy to commit the armed robbery. [The appellant] told Connell that they needed a vehicle for the armed robbery and Connell took [the appellant] to Adam Coe's house where the already stolen black Telstar TX5 was located. [The appellant] then had the double barreled shotgun with him and it is in a bright yellow coloured long bag and showed it to Connell and said he was ready to go.

Connell was driving, receiving instructions from [the appellant] who told him to pull up outside the Doveton post office where they stayed watching the place for a couple of minutes and as there was a lot of old people there Connell didn't want to do it with them around. They drove away for a while but then came back to the same spot about 15 minutes later.

[The appellant] got out of the car, put his gun into his jacket so the butt of the gun was under his left arm pit and the barrel pointing down with the gun hidden. He had a balaclava on his head ready to be pulled down and walked past the shop and turned around once Connell tooted the horn and waved him to come back. Connell told [the appellant] 'the jacks have just passed the main road and we're getting watched' and told him he was not going to do the job and went back to [the appellant's] ex-girlfriend, Janita Lee's place, where Connell 'kept up this story'. 'The story was just bullshit and I just didn't want to do the job' and [the appellant] believed the story saying 'we were lucky'.

I now go, Your Honour, to the summary in respects of counts 7-8.

Janita Lee, [the appellant's] ex-girlfriend, had made a statement to the police incriminating [the appellant] in the conspiracy to commit the armed robbery at Doveton. In that statement Lee says:

(a) [the appellant] had a double barreled shotgun with red electrical tape wrapped around the handle, together with balaclavas, shotgun shell and throw away gloves, a black trench coat and blue cotton jacket.

(b) She heard [the appellant] and Ben talking about doing an armed robbery at the post office at Doveton and they were talking about using a shot gun to do the armed robbery.

(c) They expected to get about $10,000-$30,000 from the robbery.

(d) They had said they were going to suss out the place and see who was working there.

(e) They left with a duffle bag that had balaclavas and a shotgun in it. About two and a half hours later they returned. They were both agitated and said it felt like cops were watching them so they didn't do the armed robbery.

(f) [The appellant] wiped the shotgun down with a rag and put it in the bag. She wiped the bullets down with her jumper and they also went in the bag. [The appellant] later decided to hide the duffle bag with the shot gun and other stuff at the beach. He said he was going to hide it at the beach.

(g) The following day [the appellant] went back to the beach and couldn't then find the gun and thought that Ben may have taken it.

I will just note, Your Honour, the references to Ben there refer to Mr Connell.

[The appellant] was arrested on 27 May whilst in company with Janita Lee on unrelated matters. Whilst in custody at Port Phillip Prison he made a series of phone calls to Westwood and also to his co-offender in the completed armed robbery at Chelsea, Nicholls. The present security system monitors and records telephone calls made by prisoners. Both the prison inmate and the recipients of their calls are informed of this monitoring and recording procedure. [The appellant] instructed Westwood to provide Nicholls with Lee's name, address and description in order that Nicholls pressure Lee from giving Crown evidence. Westwood did provide those details to Nicholls but did not himself pressure Lee.

In various phone calls to Westwood [the appellant] said amongst other things the following on 13 June 2004 -

I've got a (indistinct) now, after I see you and you help me out with her you won't have to do much, just see her and tell her how it is and that. It won't be long till I'm out so I just think Jacinta knows how to make a statement.

I can get her found.

On 19 June 2004: 'That bitch Janita, I'll cut her fucking head off. Janita, I've got to try and get her to come to court, I'm gonna go for bail.'

On 20 June 2004:

She finds herself in trouble for this, you know what I mean. I'm not going to tolerate this. I won't forget it either. She gets caught with half a gram, because of that she tries to put me in for six strikes. I'll fucking cut her head off with an axe and bury her at the farm, let the cat piss on her and the chooks.

On 4 July 2004:

Some night on the way home from work can you stop at Janita's, try and catch her, let her know what she's done. To fix it she's got to see my solicitor, say that she was drug (indistinct).

In other conversations ... on 8 July 2004 between Marian Stevens and [the appellant], [the appellant] made reference to receiving the hand up brief and then said:

They've got fuck all, Janita and that other bitch, Neil should have went and seen her by now after work.

On 11 July 2004 Westwood and [the appellant].

[The appellant] said:

Got a letter off Janita, got her address and everything.

Westwood said:

I'm gonna see her tomorrow, I'll have a little chat. Talk to her, if sympathetic I'll bring her here.

[The appellant] then said:

If she makes a new statement I can lodge a 6A on a change of evidence. If she does that then they'll pull the case. Don't hit her with a brick and then sweeten her, sweeten her and (indistinct) hit her with a brick.

[The appellant] also directed Nicholls to approach Lee to break into her premises whilst armed with a replica firearm, place her in fear of her life and tell Lee that she should give evidence then Nicholls will return and shoot her.

Nicholls did not in fact contact Lee and notwithstanding the directions provided by [the appellant]. On 22 July 2004 [the appellant] had said to Nicholls:

I can take you with me. I need you to see her, Bala on your scone don't hurt her, tell her you were wrong, you made a mistake. The best she can say is she made it up and conspired with Gemma. Bala go on, you know what I'd give to Robbie that he lost. Get one of them that looks all right and absolutely shit her pants but don't hurt her. Let her know that if you don't do that, I'll fucking come back or she might say, 'I don't want to turn up'. Live with you for a week, Paul. If I go good on this one, I'll go good on the Chelsea job. You do this for me, Paul, help me or I'll fuck you over too.

I note that on the same date, this conversation which isn't referred to in this document was also included and is again between [the appellant] and Mr Nicholls. [The appellant] said,

They got me with her at the chemist. What I want is for her to say that she made this statement wrong. I want it thrown out at committal. You might have to sit there day and night to catch her. Do this for me, Paul. Sneak in the back way so she doesn't know who it is. You know what I'd like to do? I'd like you to grab her with Bala, with a rep that I left up there. Say change because if you don't I'll come back and blow your head off.

[The appellant] then made further phone contact with Westwood passed Lee's details onto Nicholls in order for him to visit and intimidate Ms Lee, Janita Lee.

The three count presentment

The three count presentment relates to two brackets of offences,

(a) two counts of threat to kill wherein [the appellant], at the completion of a record of interview, made threats to kill in respect to kill in respect to both the police informant and a prosecution witness;

(b) an attempt to pervert the course of public justice wherein [the appellant] attempted to have a former Port Phillip Prison inmate, Beau Travis Michaelson, visit certain prosecution witnesses with the objective of getting those witnesses to change their police statements.

Threats to kill, Counts 1 and 2.

The two threats to kill follow [the appellant] being interviewed at Port Phillip Prison on 18 November 2001.

In respect to Count 1, in respect to the prosecution witness Janita Lee, [the appellant] said to the informant:

I'll visit her and anyone else that gives me up. I suppose you're going to have to charge me over that now. I'll cave the back of her head in with a claw hammer, I'll kill her and the rest of them and that includes you.

Count 2 in respect of the informant, Detective Senior Constable John Barber. At the time of making the above comments in respect of Janita Lee, [the appellant] addressing those comments to Barber said:

I'll kill her and the rest of them, that includes you. I don't care, I'm happy in here and I'll make sure you pay.

[The appellant] continued saying:

Why am I handcuffed? If these weren't on I'd smash you, I'd take you both on. It's not over between you and me. I won't have handcuffs on forever.

Not going to those - I'm not interposing something, Your Honour, not going to the occasion of those threats but going to the informant's state of mind prior to those matters that I've just taken you to in relation to the occasion of Counts 1 and 2, in a recorded - and this is something the informant was aware of prior to those threats.

In a recorded telephone conversation between [the appellant] and Mr Westwood, [the appellant] says:

Yeah, fuck him. He's a dog. I wouldn't mind shooting him dead with a shotgun and I'll blow his head off with a solid - an SG.

and there is a reference later on - that's all in the singular - and there's a reference later on to 'coppers' plural.

Mr Barber's understanding was as the informant and the only policeman who was primarily dealing with [the appellant] at this stage that that was a comment speaking of him prior to the other matters that I've just taken Your Honour to.

Count 3, attempt to pervert the course of public justice.

At a time when [the appellant] was an inmate at Port Phillip Prison awaiting trial in respect to the Chelsea armed robbery, the conspiracy to perform an armed robbery at Doveton and the pervert the course of public justice charges, that's Counts 1 to 8 on the previous plea presentment.

Beau Travis Michaelson who is also known as Christopher King was also an inmate at Port Phillip Prison. Michaelson was released in July 2005 and contact remained between [the appellant] and Michaelson by regular phone calls which were monitored on the Arunta telephone system.

During those phone calls [the appellant] indicated that certain witnesses implicated him in the commission of the offences by making false statements against him and conversations occurred where [the appellant] and Michaelson discussed the prospect of Michaelson, on his release, visiting some witnesses before the trial. Further phone calls indicate that Michaelson visited Merlino and Michaelson stating: -

That Paul Merlino, He's shit when I want him, see it in him. He further stated, 'Oh, civil but firm at the same time.' Even with me not putting any force on him, he was prepared to do what he said on the phone. I don't think he is that staunch in the police station.

As a result, Michaelson visited Paul Merlino on 24 August 2005. Merlino's account of that version is as follows:

Michaelson had a mobile phone, was talking to [the appellant] and gave the phone to Merlino to talk directly to [the appellant].
[The appellant] basically apologised to Merlino but didn't ask him to change his statement. Merlino told [the appellant] he was not going to be a witness but that he could be subpoenaed but that he would be hostile.
Merlino interpreted Michaelson's approach to him as 'trying to butter me up, trying the soft approach to get me to change my evidence or not give evidence at all.' Merlino decided to talk to [the appellant] on the phone 'to keep everything smooth as you do not want to hassle these people.'

During a further telephone conversation between [the appellant] and Michaelson a hand drawn map was discussed. The Crown case is that the map was drawn to locate the prosecution witness, Paul Nicholls' residential address in Wonthaggi. The map was located during the search of Michaelson's address.

Nicholls confirms the details on the map including his nickname Splinter, shows the way to his home address in Wonthaggi.

Michaelson provided a statement, where he said:

He knew [the appellant] from his time inside prison. [The appellant] told him he wanted to speak to Paul Merlino and Paul Nicholls. He said he wanted to know what each had told the police in respect of the armed robbery - that's Chelsea.
Michaelson felt indebted to [the appellant] and agreed to go around to Merlino and Nicholls' homes to arrange to get each of them to speak to [the appellant] on the phone.
[The appellant] drew a map which contained directions to Nicholls' home.
He told [the appellant] he'd seen Nicholls on the basis that [the appellant] spoke to him, spoke to Nicholls using his mobile phone. He had no instruction to threaten him.
He'd seen him in late August 2005.
He'd told Merlino he wasn't there to cause trouble, he was only a messenger. He handed Merlino his mobile phone and Merlino spoke to [the appellant] after saying something like, 'You're up for a few years, [the appellant], they're really going for you.' Merlino went into the kitchen and didn't really listen. At no time did he ask Merlino to change his evidence or did he discuss remaining silent in court and didn't threaten him.
The next stage [the appellant] told him he appreciated what happened at Merlino's house and it was 'a big help' towards his case.
[The appellant] rang at times asking him to go to Wonthaggi but because of fuel prices he didn't have the money to make the trip. Going would have meant speaking to Nicholls the same as Merlino. He was trying to put [the appellant] off as a result and never saw him, nor carried out his instructions to go and see Nicholls.
He was in a position where he felt obligated to [the appellant] to do what was a simple and quick thing but never tried to intimidate or induce Merlino to change his evidence.

11 There is little that need be said about the circumstances or nature of the appellant's offences. The counts related to the armed robbery, and subsequent conspiracy to engage in further offending of the same type, involving conduct that could appropriately be described as being classic examples of the genre. Their seriousness is apparent when viewed generally and in their particular circumstances. Unsurprisingly, the impact statements of various witnesses to the armed robbery reflect the kind of psychological harm so often associated with violent offending of this type.

12 The significance of the making of threats by the appellant against the life of a prospective witness and the investigating police member, and his attempts to intimidate witnesses in an endeavour to avoid the consequences of his criminal behaviour, is equally obvious.

13 We should also point out that, although the appellant was found by the sentencing judge to have had a drug problem since the age of 17 years, it has not been suggested that this made any direct contribution to the commission of the offences. In any event, when regard is had to the nature of the offences and the conduct involved, minimal significance, if any, could be attributed to it as a mitigating factor.

14 From whatever perspective they are viewed, the activities in which the appellant engaged were calculated and serious breaches of the criminal law. They were strongly indicative of the entrenched lifestyle and pathology to which forensic psychologist, Mr Joblin, adverted in a report forwarded to the sentencing judge (see [15] below). General and specific deterrence are highly relevant considerations in the determination of appropriate sentences in this case.

15 For present purposes, the background of the appellant, who was aged 36 years at the time of sentencing, has been sufficiently set out by the judge, in remarks which it has not been suggested are inaccurate or incomplete in any relevant respect:

The essential features are that [the appellant's] parents separated when [the appellant was] about seven years old. [The appellant's] father had a business making cool rooms. He has since sold that business and is travelling. [The appellant] told Mr Joblin that [he] had a good relationship with [his] stepmother. [His] mother is aged 50 and lives in Dandenong. She is currently in a relationship with Westwood. I am told that [the appellant has] a good relationship with [his] mother. [He has] a younger brother who is employed in [their] father's business and a sister whom [he has] had limited contact. [He] completed school at the Noble Park Technical School, leaving at Year 9. [He] told Mr Joblin that [he] had a series of jobs including working with [his] father as a bricklayer's labourer, a panel beater and a spray painter.

From an early age it seems that [the appellant has] had problems with drugs and alcohol, using heroin at the age of 17, and when in custody [he has] been, in the past, placed on methadone, and [he is] still on, as I understand it, 85 milligrams of methadone daily, indeed as at 13 June of this year when I made that note. As well as problems with heroin, [the appellant has] used amphetamine, and indeed [he was] using amphetamine until [he was] placed in custody in mid 2004.

Mr Joblin noted: '[The appellant's] primary presenting problem is his quite obvious personality disorder, and his offending history is related to that. Indeed, it's quite apparent that the chronology he gave, particularly when he was 16, and even at times before that, has been inextricably linked to the criminal justice system. Indeed, [the appellant] reported that over the past 16 years he has been at liberty only a matter of two and a half years in total.' Mr Joblin also reported: 'It seems, therefore, that he's had difficulties when he was young as a result of his parents' separation and his feelings of alienation from both. He became a father at the age of 16, but that child died in cot death.' Mr Joblin later said, '[the appellant], with a degree of insight, indicated that that was an extremely difficult issue for him and has caused him significant psychological problems. He acknowledged that he attempted to answer those problems with heroin use.' Mr Joblin reported: 'I have some serious concerns about [the appellant's] presentation. There is no doubt that he has the symptoms of a concerning personality disorder. In addition, [the appellant] acknowledged that he is comfortable in gaol. He acknowledged that gaol is of limited deterrent value for him. He is familiar with gaol politics and knows how to make his life in gaol comfortable. Indeed, he seems to regard gaol as his identity, considering himself simply as a criminal.'

Later in the report Mr Joblin expressed an opinion that [the appellant had] developed a personality profile by reason of [his] continuing history of imprisonment that the late Dr Bartholomew described as a barbed wire psychosis. Mr Joblin noted: 'Such a diagnosis involves the prisoner's inability to relinquish values and attitudes necessary to survive in an institution at the gates when he leaves, thus such prisoners take those values with them into the community at large, which are totally inappropriate for their successful integration. Further incarceration of such individuals is of limited deterrent value.'

Mr Whitchurch explained in the course of the plea, while at large from the prison sentence that preceded these serious offences, [the appellant] went to Langwarrin, [he] obtained employment and, indeed, it seems [he] settled down for something like three months and then [he] commenced to drift back into [his] old lifestyles. [The appellant] began using drugs more frequently and began to live the life of a criminal.

...

... I am told that since May of 2004, when [the appellant was] first arrested, [he had] been in a security setting at the Port Phillip Prison, which means, in effect, [he had] been locked down, so I am told, for something like 23 hours a day with one hour out for exercise and during that time, to make any phone calls [he was] entitled to, with limited ability to socialise with other prisoners. That regime has now lasted something like two years three months, and if that description is right, which I accept, whilst I accept that there is a need to house security prisoners in a different way from mainstream prisoners, to have somebody locked down for two years and three months for 23 hours a day whilst on remand, to my mind, is an indictment on the lack of proper facilities containing prisoners in this State.

During that time [the appellant had] limited visits, I am told, from [his] mother and from Wendy Marshall, who gave evidence before me. Marshall has been since banned from visiting [him] because it was found out that she had a criminal history that involved drugs, although she tells me for some considerable time she has been drug-free. Contact has continued, however, by way of telephone calls in the last several months. Ms Marshall said that she was prepared to offer [the appellant] support, indeed accommodation when you are released from gaol.

Mr Joblin, in the final paragraph of his report, stated: 'As indicated above, it's relatively easy to determine a diagnosis but extremely difficult to know how he might be assisted. His disorder is entrenched. One would hesitate to indicate that it is amenable to treatment, even if any type of treatment is available. He has a somewhat engaging presentation, however, and one would consider that if he formed a positive appropriate relationship with a counsellor or a parole officer, he may be able to be directed while at liberty. Perhaps, had that happened many years ago, the prognosis could be more optimistic. However, given his current age and presentation, that may now be somewhat difficult.'

As I have noted in the course of the plea, the matters that [the appellant has] previously been convicted of all involve terms of imprisonment, save for the time that [he was] sentenced to be detained in a youth training centre, and whilst [he] had the benefit of parole on a number of occasions, it may well be that from an early age the continual accumulation of heavy sentencing dispositions has brought about the psychosis that Mr Joblin referred to as a psychological phenomena.

16 When the matter came before us, counsel for the appellant indicated that one consideration to which regard should be had when re-sentencing the appellant was that his client had been - and was likely to remain for most, if not the remainder, of his period of imprisonment - subject to a very strict management regime. This would render his time in custody more stressful and deny him access to rights and opportunities generally available to others within the prison system. The reason for his detention under these conditions was not clear and the proceeding was adjourned to enable some clarification of the position. Leave was granted to the parties to make further submissions, if considered necessary. Written submissions have now been received, together with an affidavit from each side. The parties have indicated they are prepared to rely on this written material without a further hearing.

17 The Crown filed an affidavit sworn by Mr Brendan Money, who stated that he was responsible for the security classification of prisoners and where they were accommodated. Mr Money stated that the appellant's placement within the prison system had arisen from his designation as a 'protection prisoner'. This in turn, it was said, was due to his history of violent behaviour towards other prisoners, non-compliance with prison rules and drug use. The conditions under which he was being held at that time were described as follows:

(a) Single person cell, with television, shower, toilet, and hand basin;

(b) Minimum of 6 hours out of cell each day;

(c) Mixing with 2 other prisoners in exercise;

(d) Up to 12 family contact visits per year;

(e) Up to 32 personal telephone calls per week, with unlimited legal professional calls;

(f) Fortnightly cooking program; and

(g) PlayStation2 in his cell.

18 According to Mr Money, the appellant had completed a number of programs and -

As a defendant in Melaleuca Unit, he is reviewed on a monthly basis by a Sentence Management Panel. The Panel consists of a member of my staff as the chairperson, a senior officer from the prison, and one or two other officers. The Panel discussions primarily concern any issues the defendant may have, discussion as to his sentence and placement, and the Sentence Plan for his future within the prison system.

Sentence Plans are refined and developed in the course of reviews conducted throughout the duration of a prisoner's sentence. Sentence Plans aim to ensure consistent management of a prisoner, identification of a prisoner's needs, provide a basis for the prison location to undertake further assessment and develop a Local Management Plan for each prisoner, and encourage a prisoner to make constructive use of the time in custody.

While the defendant's present placement is appropriate, there is always a general aim to move a prisoner into a lesser security unit. The usual practice is for a prisoner to move out of a management unit into a more mainstream unit, before being considered for placement in a lesser security prison. My staff have discussed the various placement options with the defendant on numerous occasions, but until he co-operates with a personal development plan and complies with it, he is appropriately placed. Also, the defendant has said he was settled in Melaleuca Unit and wished to remain there.

19 The appellant does not challenge the stated reasons for his initial designation as a 'protection prisoner' or the description of the conditions under which he is currently being held or the assertion that he has indicated a preference to remain where he is. He disputes, however, that there has been any continuing difficulty of any of the kinds mentioned by Mr Money. He contends that it is his protection history during previous periods of imprisonment which has been the dominant consideration in the determination of his current placement. In any event, his counsel argued, whatever may be the reasons for the imposition of this regime, consideration should be given to the reality that the conditions under which he is being detained are more onerous than those to which other persons undergoing their sentences in ordinary prison conditions would be subject.

20 It is, of course, well accepted that the conditions under which a sentence of imprisonment is likely to be served - and the personal, physical and social situation of the individual concerned - are to be taken into account when considering the severity and impact of the penalty imposed in the particular circumstances.[6] This aspect of the matter can be significant in situations where it appears that, by reason of the presence of some feature personal to the offender, the serving of a term of imprisonment can be seen to be more onerous than would ordinarily be anticipated for a person who could reasonably be described as a 'mainstream' prisoner.

21 There would seem to be no real doubt that the conditions under which the appellant has been required to serve his sentence are more restrictive than those applicable to the bulk of the prison population. As noted earlier, however, it is also acknowledged by him that this situation has arisen as a consequence of his behaviour during his periods of incarceration. Moreover, it appears that, for his own reasons, possibly related to his personal security concerns, he prefers to remain in his current placement.

22 The circumstances giving rise to the placing of a prisoner in protection are clearly relevant, as are the actual restrictions which result.[7] Thus, it is one thing for a prisoner to be kept apart from other prisoners and subject to a more restrictive management regime because, for example, he is perceived as being at risk of retribution as an informer, or can be seen to be vulnerable to violence or abuse by other prisoners. It is quite another for a person to be similarly situated as a consequence of his violence towards others, or of his drug use, or of his refusal to comply with the ordinary standards that must be maintained if the prison environment is to remain safe and stable, both for those who are employed there and for the prisoners who are perforce obliged to cohabit within its walls.

23 In the present case, the appellant's placement within the system is attributable to his own past conduct and conforms with his own wishes. That being so, no significance can be attributed to it when considering the sentence to be imposed. It is also relevant that the conditions under which the appellant was being detained at the time of Mr Money's affidavit were significantly less restrictive than those taken into account by the judge in his sentencing remarks and under which he was apparently being held at that time.

24 The appellant was assessed by Mr Joblin as being of average intelligence and not suffering from any mental illness. He can be taken to have had a clear understanding of the significance of his various behaviours, although it would seem, unfortunately, that his sense of moral responsibility has long since been severely blunted. He pleaded guilty, however, and that must be given real effect in his favour. His Honour addressed these aspects -

It may well be that your earlier reluctance to plead guilty is a symptom of the barbed-wire psychosis that Mr Joblin referred to in his report. Although I am told that in respect of a number of other matters, if not all the other matters on the further presentment, you pleaded guilty to in the past, one can only hope that there is a growing realisation in you that you are wasting time in your time in gaol and that you are at an age where you should have grown out of your offending conduct, and indeed hopefully you are also at an age whereby you will be able to rid yourself completely of your addiction to methylamphetamine and heroin. Mr Joblin noted that you are of normal intelligence and that there no mental illness problems that would inhibit your ability to rehabilitate.[8]

25 There was, in the appellant's written submissions filed in support of the appeal, a complaint that the judge had failed to accord natural justice to the appellant when considering the application of the principle of parity. It was pointed out that the prosecutor had drawn the attention of his Honour to the appellant's criminal history, arguing that there should be some level of disparity between the appellant and the co-offenders. In that situation, it was contended, his Honour should also have been provided with the relevant prior criminal histories of the co-offenders.

26 The argument is, in our view, unsustainable. All present would have been well aware that his Honour had previously sentenced all of the co-offenders and hence could be taken to have knowledge of relevant features of their backgrounds and criminal histories. It is also significant that no complaint or submission on this point was made by counsel then appearing for the appellant.

27 We have, of course, had regard to the considerations to which counsel adverted, it being necessary to assess the extent, if any, of any differentiation that is to be made between the position of the appellant and his various co-offenders. In particular, counsel argued, the co-offender Nicholls had three prior convictions for armed robbery and one for attempted armed robbery. That being so, it was argued, even accepting that Nicholls had played a lesser role, had entered an earlier plea of guilty and had undertaken to give evidence, the sentences imposed upon the appellant should be closer to those imposed on Nicholls than those handed down by the sentencing judge.

In terms of the question of parity of sentence there will be obvious differences between [the appellant] and the other co-accused for a variety of reasons, the principal one being that each of them has agreed to assist the Crown in presenting its case against [the appellant] and therefore they are entitled to significant discounts, Nicholls, in particular, because he pleaded guilty, involved a real risk that he would be immediately incarcerated, and it was conceded by the Crown in those circumstances that he would be in significant danger of harm if placed in the prison. Westwood, of course, had no prior convictions. Drowley, limited prior convictions compared with the others and indeed with [the appellant].

29 Without setting out in detail the various distinctions that can be seen between the appellant's situation and each of his co-offenders, it is apparent that the individual sentences handed down by his Honour in his case were available in the proper exercise of sentencing discretion. Indeed, some of them could be described as quite, if not unduly, lenient in the circumstances. With that reservation, we consider that the individual sentences, orders for cumulation and the resulting total effective sentence were appropriate. The discrimination effected by his Honour between the appellant and his co-offenders was reasonably based. Although at one point he misstated Nicholls' history with respect to armed robbery, this does not appear to have had any significant impact on the outcome. The appellant would not be entitled to any justifiable sense of grievance in the circumstances, bearing in mind his dominant role; his prior convictions; the co-offenders' undertakings to give evidence against him; and their early pleas of guilty, indications of remorse and enhanced prospects of rehabilitation.

30 We can see no good reason why the same sentences should not be re-imposed. This would again create a total effective sentence of eight years and nine months.

31 We turn to consider the non-parole period. We noted earlier[9] the suggestion by the Crown that the requirement that the appellant serve six years and nine months before he became eligible for release might be viewed as producing an unduly short period of parole. Nevertheless, given the criminal history of the appellant and his clearly limited prospects of successful reintegration into the law- abiding community, it is understandable that the sentencing judge allowed for a possible parole period of not more than two years. In our view, it is appropriate to so direct.

32 At the end of the hearing in the Court below, the judge was reminded that he had not addressed the period of disqualification from holding a driver's licence to which the appellant was to be subject pursuant to s 89(4) of the Sentencing Act 1991. Without further comment he fixed a period of disqualification of nine years. He did not state the reasoning which led him to prohibit the appellant from driving for more than four years after the conclusion of the non-parole period and two years after the completion of the total effective sentence. The proper approach to be adopted by a sentencing judge in this situation has been stated by Ashley JA in R v Novakovic.[10] There is, in our view, no obvious justification for the making of an order of this length. In order to avoid placing an unnecessary obstacle in the path of the appellant's rehabilitation, we fix a period of disqualification of six years and nine months from 17 October 2006.

[1] The appellant fell to be sentenced as a serious violent offender on count 2.

[2] The sentencing judge appears to have incorrectly calculated the number of appearances and offences but this error is highly unlikely to have assumed significance in the circumstances.

[3] R v Nobile [2006] VSCA 211, [43], (Coldrey AJA).

[4] R v Detenamo [2007] VSCA 160, [26], (Redlich JA).

[5] Westwood was in a de-facto relationship with the appellant's mother. The appellant also contacted him from prison.

[7] Cf R v Males [2007] VSCA 302.

At a glance

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Before

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Judgment (56 paragraphs)

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Cases Cited (2)