Devereux v Kehl & Anor [2005] ACTSC 131 (9 November 2005)

Last Updated: 22 May 2006

MARK FRANCIS DEVEREUX v DIETER RICHARD MICHAEL KEHL & ANOR [2005] ACTSC 131 (9 November 2005)

EX TEMPORE JUDGMENT

Rehabilitation of Offenders (Interim) Act 2001

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 59 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 9 November 2005

IN THE SUPREME COURT OF THE )

) No. SCA 59 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MARK FRANCIS DEVEREUX

Plaintiff

AND: DIETER RICHARD MICHAEL KEHL

First Respondent

AND: TRENT ROBERT MADDERS

Second Respondent

ORDER

Judge: Higgins CJ

Date: 9 November 2005

Place: Canberra

THE COURT ORDERS THAT:

1. Appeal be allowed.

2. Sentence imposed confirmed but amended to include a non-parole period commencing 30 June 2005, expiring 29 June 2006.

1. In this matter Mr Devereux was sentenced by her Honour Magistrate Doogan to 12 months' imprisonment from 30 June of this year for an offence of breaching a protection order in respect of the person named in the charge.

2. It is quite clear that this offender has a considerable record for similar offences in the past. Indeed, so many that in respect of the more recent ones, he had been already sentenced to 39 periods of detention of which he had served 10. He had also been given a suspended sentence of 6 months' imprisonment for another breach of protection order in respect of the same person. So I think it is fair to say that when he came for sentence before her Honour on this occasion he had really exhausted every option but full time imprisonment.

3. In addition to the sentence of 12 months' imprisonment just mentioned, her Honour activated the suspended sentence of 6 months. She allowed a credit against that of 64 days which had already been served and cancelled a periodic detention order. That left 29 periods of detention to be served as 29 weeks of full time imprisonment, to which sentence her Honour also added the two previous sentences. That makes a total, I am informed by counsel and accept, of 688 days. Dated from 30 June 2005 that leads to a sentence of imprisonment expiring on 19 May 2007.

4. It is clear from the pre-sentence report that was before her Honour (and is of course before me) that the trigger factor for the appellant's breaches of protection orders seemed quite clearly to be alcohol and proximity to the victim.

5. Her Honour is correct to have found, as her Honour did in considering section 32 of the conditional release provisions, that it would not be possible in the circumstances before her Honour, and indeed as they are before me, that there could be any confidence that the appellant would conform to the conditions of a conditional release order. His offending behaviour in the past would sap any confidence in that.

6. In any event, Mr Beaver, the Probation and Parole Officer who reported on 18 July 2005 assessed Mr Devereux as being at high risk of committing further offences of a similar nature. He took into account "the known alcohol abuse history, relationship issues coupled with an extensive criminal history."

7. Speaking on behalf of the service, he "...could not foresee his risk to the community or himself being able to be reduced without intensive interventions and the engagement of associated services to assist him." And it might be said that, without a change in his attitude or circumstances, there can be no confidence that that high risk of re-offending would be reduced to an acceptable level. Her Honour was therefore correct in my opinion in finding as her Honour did. That is, that the appellant-

will not comply with any conditions if released on any recognizance and, in considering that, it is inappropriate to order his release on yet another recognizance.

8. And I might add there, although her Honour did not expressly say so, that is whether or not a portion of the sentence, whichever portion that might be, was served.

9. However, there is, as Mr Standish has pointed out in his submission, a provision in respect of setting of a non-parole period under s 31 of the Rehabilitation of Offenders (Interim) Act 2001. Certainly s 31 is activated because the sentence to which Mr Devereux was subjected was 688 days, in effect, which is one year or longer. And it is therefore, "two or more terms of imprisonment totalling one year or longer". Indeed, the first sentence was of itself one year.

10. The section provides -

The court must (I emphasize "must") set a non parole period during which the person is not eligible to be released on parole.

11. Now that section may be departed from but the onus, of course, is on the party urging a departure from it, if, inter alia, the court, having regard to the nature of the offence or offences and the antecedents of the person, considers that setting a non-parole period would be inappropriate.

12. Now her Honour did express the opinion, put simply, "I decline to set a non-parole period." Her Honour had given reasons for declining to order a conditional release even if after a period of the sentence had been served. It is important to note, I think, that the setting of a non-parole period is quite a different process from the consideration of a conditional release order.

13. The major difference is that getting a non-parole period is an acknowledgement that one cannot be confident at that time that release after a period of service of imprisonment would be appropriate at the time when that is to be considered. But circumstances may change. The appellant's attitude and prospects may change. And a non-parole order takes account of that.

14. A non-parole order, I emphasise once more, as I have said on previous occasions, does not entitle the person in respect of whom it is pronounced to release at the end of the non-parole period. The person still has to persuade the Parole Board (now the Sentence Administration Board) that there are reasonable prospects for their rehabilitation and that they will obey whatever conditions the Parole Board is minded to impose on any such release.

15. That being the essential difference, it was incumbent upon her Honour to have indicated why it was that she was able to say, if she was saying so, that, in the next two years, there are not likely to be any circumstances in which this offender might change his attitude or prospects so that he could not reasonably have been made the subject of a parole release order.

16. As I indicated, not to have done so was an error and while I appreciate that her Honour probably had in mind the same reasons she applied to her decision not to set a non-parole period, it simply did not, regretfully, address that issue.

17. I think, having regard to the circumstances outlined in the updated pre-sentence report, even allowing for the rather unimpressive history that Mr Devereux has, there may well be prospects for rehabilitation if Mr Devereux is deemed at the appropriate time to be able to cease alcohol consumption and have no further contact with the victim.

18. It may be that that could be done through the activation of some associated services, as Mr Beaver refers to, to support Mr Devereux. It may be that he will have so altered his disposition after a period of imprisonment that that decision can confidently be made by the Parole Board.

19. In either event it seems to me that it would be appropriate to set a non-parole period, albeit that the nature of the offending, and the circumstances in which the offending took place, make it impossible to say that the sentences themselves were in any way excessive.

20. In my opinion, the correct response at present is to confirm the sentences which her Honour imposed, noting that they date from 30 June in the year 2005 and expire on 19 May 2007. But, in accordance with s 31(1) Rehabilitation of Offenders (Interim) Act 2001, to set a non-parole period during which this offender is not to be eligible for parole. That period commences on 30 June in the year 2005 and expiring on 29 June 2006.

21. The Appeal is to that extent upheld.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 13 December 2005

Counsel for the appellant: Mr J Sabharwal

Solicitor for the appellant: South Eastern Aboriginal Legal Service

Counsel for the first & second respondents: Mr B Standish

Solicitor for the first & second respondents: Office of the Director of Public Prosecutions

ACT

Date of hearing: 9 November 2005

Date of judgment: 9 November 2005