Harsh sentencing and prison violence
It was a prison officer on a laundry run who found him. The cell in which Robin Mark Irvine lay comatose was awash with blood. Red footprints attested to other prisoners having been in and out. None had raised the alarm.
Irvine’s head had been repeatedly bashed and his brain horrifically damaged. He was in a vegetative state and remained in a coma for nine months.
In May, Richard Tohifolau, a serial violent offender, pleaded guilty to the assault. But the story of the case began almost exactly three years before this plea, on Mother’s Day, 2014.
That morning Irvine was in his ute heading home after a 12-and-a-half hour shift at the Ulan coalmine, half an hour’s drive north-east of Mudgee. He entered the 50-kilometre zone on the edge of town travelling between 70 and 80 kilometres per hour. Irvine had worked three consecutive night shifts the week of the accident.
Jill Bryant was out cycling that morning. She was a well-known local winemaker and mother. At 7.45am Irvine’s car crossed the outer white line and hit Bryant from behind. She died at the scene. Irvine remembers seeing a white blur and feeling a sudden collision. He doesn’t believe he fell asleep. Whether his eyes closed or not, fatigue seems the most probable explanation for the accident. He was not under the influence of drugs or alcohol.
Negligent driving, the offence with which Irvine was charged, is defined strictly by the law. Momentary inattention, perhaps brought about by looking at the car radio or turning to speak to a passenger, is sufficient to commit the offence. As is speeding, even modestly. Offenders often present with unblemished records, displaying deep remorse.
The offence of negligent driving causing death is the lowest in seriousness of traffic offences involving the taking of human life in New South Wales. Statistics maintained by the NSW government show that of the 65 cases dealt with between 2013 and 2016, only two people were jailed. A large percentage received non-conviction orders, the most lenient sentence available.
In Irvine’s case, it fell to the magistrate, Darryl John Pearce, to determine the appropriate punishment. Known as “Fierce Pearce” in the criminal law fraternity he is a magistrate of considerable experience, but has courted controversy on more than one occasion.
In 2010, 13 men who had been jailed by Pearce were released on appeal. When District Court judge Garry Neilson came to the case of Ian Klum, he wept when told Klum had been bashed to death at Grafton jail while awaiting the outcome of his appeal against a sentence for the offence of driving while disqualified. Pearce had refused an application by Klum for bail pending his appeal.
When Irvine came before Pearce sitting in the Mudgee Local Court, the court was told he accepted full responsibility for the accident and wanted to express his remorse to Bryant’s family. His solicitor, John Anthony, explained the accident was fatigue related. Irvine had resigned from his position since the accident and could not face returning. The court was told he was experiencing ongoing psychological issues from his involvement in the death. A pre-sentence report said Irvine would benefit from supervision and counselling and that he was eligible to undertake community service.
The magistrate made his decision without adjourning the court to consider the matter. Irvine was jailed for 12 months, with a non-parole period of nine months. “It’s no small note,” Pearce said, “that the defendant has caused the death of another human being.”
Like many sentenced in the Local Court, Irvine immediately indicated his intention to appeal the sentence and applied for release on bail. But there was to be no appeal bail while the correctness of the sentence was challenged. Irvine, like Klum before him, would go to jail immediately.
Irvine’s solicitor said he was in total shock. The prosecutor had not opposed bail, Irvine had been remorseful from the outset and he was surprised he was described as a flight risk. “The most amazing thing about Robin was I went and saw him in the cells. He said, ‘Look, John, someone is dead and if I have to go to jail I will do my time.’ I thought that reflected on his credibility amazingly.”
Irvine entered custody on July 22, 2015. The nearest jail was the Wellington Correctional Centre, a maximum-security prison. On arrival, Irvine was stripsearched and allocated prison greens.
Wellington houses about 700 inmates, some of them violent offenders or gang members moved from other jails across the state to isolate them.
Tohifolau, 20, was serving a jail term at the time for break and enter and being armed with intent.
Cathy Irvine spoke to her son in jail and visited him on his first Saturday. She describes him as having been numb, seemingly still in shock at his new environment. Irvine told his mother he was hoping to be transferred from Wellington as soon as possible.
Footage played in the trial showed Tohifolau entering Irvine’s cell about noon on the day of the bashing and almost immediately hanging a white towel on the door before remaining inside for a number of minutes.
A witness gave evidence that such placement of a towel was code for “a shower, shit or a fight”. Another prisoner in the cell was ordered to leave and immediately complied.
Two prisoners patrolled the door while Tohifolau was inside. Other prisoners were in the immediate vicinity but did nothing to raise the alarm. Even Irvine’s cellmate, who during the trial stated they had developed a friendship, did not rush to alert prison authorities.
The court was told of a raft of other potential witnesses refusing to provide police with statements. CCTV footage showed a large number of other inmates walking into Irvine’s cell after the three men exited, though none of them alerted authorities.
Irvine was not discovered, at least by anyone willing to raise the alarm, for an hour and a half. When he was found a pillow had been placed under his head: a small act of compassion. Doctors later described severe bleeding to the brain and fractures to the eye socket, nose and cheekbones. Swelling and internal bleeding had caused extensive blood loss through his ears, mouth and eyes. The pillow was soaked through with blood, the cell covered in it.
Irvine was rushed to Orange hospital in a critical condition and later flown to Westmead Hospital. After close to two years in a rehabilitation centre, he finally returned to his mother’s home in Aberdare.
Irvine now requires 24-hour care, which is being provided by his mother with outside assistance. He is unable to use the toilet by himself. In time, he aims to regain the ability to walk and talk. Longer term he wants to move into his own unit and live independently. His intellectual functioning has returned to the point where he can play chess with assistance. He and his wife have recently divorced.
The evidence at trial was silent on the motive for the brutal assault. Irvine has no memory of it. The Crown prosecutor conceded that, “events occur in prison, violent events, and we often don’t know the reason”. Mistaken identity, or a misunderstanding over the reason Irvine was in jail, might explain the assault having occurred.
Tohifolau was a member of a prison gang called The Outkasts, made up of young Pacific Islander inmates. According to a serving prison officer who spoke on the condition of anonymity, the gang was formed in Goulburn jail by younger inmates, “tired of doing the bidding” of older peers. Goulburn jail is segregated along racial lines and has incubated gangs that can spread through the system.
The Outkasts widened to Lithgow and Wellington jails using extreme violence as a tactic for gaining notoriety and influence. Last year, the gang was said to have 26 members across the state.
Bashings and sexual assaults are a regular occurrence in Australian jails, yet individual offences feature little in public discussion. If Irvine had been beaten this way in Kings Cross on a Saturday night, his assault would have been front-page news. Yet his maiming in a place where the state was responsible for his wellbeing slipped by without any media attention or scrutiny.
Our jails, dangerous places at the best of times, are shockingly overcrowded. The state’s 37 correctional facilities were built to accommodate 11,000 prisoners. Current figures show more than 13,000 inmates, and the number has been rising.
In 2016 the NSW government made regulatory changes permitting two inmates to a cell, and even two-person cells being used to accommodate three inmates. In January, it was reported that assaults on prison premises had increased by 37 per cent over the past two years.
Cathy Irvine questions both the sentencing and bail decision in her son’s case.“I don’t think he should have got jail,” she says. “He should have noticed the lady, but as far as I understand it, usually, when there is no intent, you don’t get jail. I think the judge was particularly harsh. From what I understand that’s what he does – he goes overboard. It has devastating consequences, for Robin, for a whole heap of people.”
Irvine has received $5000 in victims-of-crime compensation from the state. Such payments are not normally made to inmates, but a special waiver was granted in Irvine’s case. The family are, however, pursuing a possible legal action against corrective services. Their solicitor reports the matter is ongoing.
Irvine’s jail term was later quashed by Judge Gordon Lerve of the District Court, who considered it pointless to inflict any further punishment on him and terminated the proceedings.
Pearce, 71, will soon retire. Cathy Irvine, 64, a nurse, put retirement on hold following her son’s maiming. She works three night shifts a week at a local hospital and will continue to be her son’s carer for as long as she can.
This article was first published in the print edition of The Saturday Paper on Jul 22, 2017 as "Criminal injustice". Subscribe here.