Byrne v The Queen
[2015] VSCA 294
•9 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0135
| DANIEL BYRNE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2015 |
| DATE OF JUDGMENT: | 9 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 294 |
| JUDGMENT APPEALED FROM: | DPP v Byrne (Unreported, County Court of Victoria, Judge Wilmoth, 5 June 2015) |
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CRIMINAL LAW – Appeal – Sentence – Attempting to pervert the course of justice and other offences – Following a car accident resulting from dangerous driving applicant attempted to mislead police – Sentence of 18 months’ imprisonment with 2 year CCO – Appeal allowed – Sentence of 10 months’ imprisonment substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | Stary Norton Halphen |
| For the Respondent | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA:
Introduction
Whilst under the influence of alcohol, in the late hours of 21 June 2014 the applicant lost control of the car he was driving and collided with several parked vehicles. He then falsely reported to police that his car had been stolen. That false report set in train a series of events which led to the applicant being charged with a number of indictable and summary offences.
On 24 March 2015, the applicant pleaded guilty in the County Court to two indictable, and nine summary, charges. Following a plea, he was sentenced on 5 June 2015 to be imprisoned for 18 months, to be followed by a community correction order (‘CCO’) of two years’ duration, according to the following table:
Charge Offence Sentence Cumulation 1 Using an unregistered category E longarm[1] 9 months’ and 2 year CCO 3 months 2 Attempt to pervert the course of justice[2] 12 months’ and 2 year CCO Base Summary Charges 3 Exceed prescribed concentration of alcohol[3] $500 fine — 5 Drive in a way that makes unnecessary noise[4] $100 fine — 6 Fail to give name and address after an accident[5] 14 days — 7 Fail to give name and address after an accident 14 days 14 days 8 Fail to give name and address after an accident 14 days 14 days 9 Unlicensed driving[6] 14 days — 10 Use unregistered vehicle[7] $500 fine — 11 Use unroadworthy vehicle[8] $100 fine — 16 Dangerous driving[9] 3 months 2 months Total effective sentence 18 months’ imprisonment and CCO for 2 years (with conditions for 100 hours of unpaid community work, supervision, treatment and rehabilitation Non-parole period Nil Pre-sentence detention 17 days Section 6AAA declaration 2 years’ imprisonment and CCO for 3 years Other orders Disqualified from holding or obtaining any licence for a period of 6 months on summary charge 3 and for 12 months on summary charge 16; forensic procedure order; and compensation orders ($10,658.59 to QBE Insurance and $3,258.34 to RACV). [1]Firearms Act 1996, s 6A(3). The maximum penalty is imprisonment for 7 years or 600 penalty units.
[2]Common law. By s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[3]Road Safety Act 1986, s 49(1)(f). By s 49(2A)(a) the maximum penalty is 20 penalty units.
[4]Road Safety Road Rules 2009, r 29. The maximum penalty is 2 penalty units.
[5]Road Safety Act 1986, s 61(1)(c). The maximum penalty for a first offence is not more than 5 penalty units or imprisonment for not more than 14 days, and for a subsequent offence is not more than 10 penalty units or imprisonment for not less than 14 days and not more than 1 month.
[6]Road Safety Act 1986, s 18(1). The maximum penalty is 10 penalty units or imprisonment for 1 month.
[7]Road Safety Act 1986, s 7(1). The maximum penalty is 25 penalty units for a first offence, and 50 penalty units for a second or subsequent offence.
[8]Road Safety (Vehicle) Regulations 2009, r 258(2). The maximum penalty is 5 penalty units.
[9]Road Safety Act 1986, s 64(1). The maximum penalty is 240 penalty units or imprisonment for 2 years.
The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentence imposed on Charge 6 was manifestly excessive in that the maximum penalty available was imposed despite the applicant’s early plea of guilty and lack of prior convictions.
2. The sentence imposed on Charge 1 was manifestly excessive given the nature of the firearm, the absence of any evidence of an intention to use it for a malicious purpose, the applicant’s early plea of guilty and relevant mental impairment and the fact the only evidence the firearm was unregistered was the applicant’s admission of guilt.
3. The learned sentencing judge erred in sentencing on Summary Charges 7 and 8 on the basis they were subsequent offences which attracted an increased maximum penalty.
4. The sentence imposed on Charge 2 was manifestly excessive given the circumstances of the offence, the applicant’s mental impairment and current sentencing practices.
As will become clear, we are of the view that the application must be granted and the appeal allowed.
Respondent’s concession of sentencing error
In a perspicuously fair submission, counsel for the respondent conceded that each ground should succeed.
With respect to grounds 1 and 3, the respondent’s counsel specifically conceded that the sentence imposed on charge 6 — failing to give his name after an accident — is manifestly excessive. The maximum penalty for that offence is 5 penalty units or 14 days’ imprisonment. Despite the applicant having pleaded guilty, the applicant received the maximum available sentence, indicating that no ‘discount’ was applied by the sentencing judge as a result of the guilty plea. Moreover, counsel for the respondent has conceded that the sentencing judge and counsel on the plea erroneously proceeded on the basis that charges 7 and 8 were ‘subsequent offences’ for the purposes of sentencing, thus attracting the increased maximum penalty of 10 penalty units, or not less than 14 days’ and not more than 1 month’s imprisonment.[10]
[10]See Kennan v Mears (Unreported, Supreme Court of Victoria, O’Bryan J, 25 January 1990).
So far as ground 2 is concerned, the respondent’s counsel conceded that the sentence imposed on charge 1 — using an unregistered category E longarm — is manifestly excessive for the reasons advanced by the applicant. Those reasons were:
· The firearm did not belong to the applicant; his use of it was fleeting; his use did not cause danger or concern to others; and there was no allegation that it was to be used in any criminal activity.
· The applicant was not a prohibited person, but did not have a licence and the firearm was unregistered (the only evidence of the latter fact being the applicant’s guilty plea).
· The sentence was to be moderated because of the applicant’s relevant mental impairment.
· The sentence was not consistent with current sentencing practice.
Finally, counsel for the respondent has conceded that, if the concessions made above are accepted by the Court, the applicant will fall to be resentenced on charge 2, attempting to pervert the course of justice.
In our view, the concessions we have referred to were properly made. Thus, as we have said, the application for leave to appeal against sentence must be granted, the appeal be allowed and the applicant be resentenced.
The offending
It is necessary to say a little more about the applicant’s offending.
During the evening of 21 June 2014, the applicant drove his motor vehicle and parked it near a licensed venue. At the time he drove the vehicle, his probationary licence had expired, it having expired on 9 February 2014 (summary charge 9 — unlicensed driving). His vehicle was unregistered, the registration having expired on 17 April 2014 (summary charge 10 — use unregistered vehicle), and the brakes were functioning only to approximately ten per cent of their capacity (summary charge 11 — use unroadworthy vehicle).
The applicant drank alcohol at three licensed premises. Around 11:00pm he collected his car from where he had left it, and drove off. The applicant‘s vehicle approached a roundabout at a fast speed and, as the applicant turned right, witnesses observed sparks coming from the wheels of the car and heard the tyres screech (summary charge 5 — make unnecessary noise). After completing the turn, the applicant lost control of the vehicle and collided with two parked cars (summary charge 16 — dangerous driving), which were angle parked outside a hotel. One car was pushed onto the footpath, sustained substantial rear end damage and had to be towed away. A second car sustained very minor damage to the rear bumper and was later able to be driven away.
Having collided with the two parked cars, the applicant reversed back out into the centre of the road in such a way that the vehicle was ultimately facing the direction from which it had come. The applicant accelerated forward, performed a ‘U’ turn and collided with the rear of a third parked car. His vehicle was observed hitting this third car and accelerating heavily, pushing the rear of the vehicle until his own vehicle was able to get around. The third car was pushed up on to the footpath, sustained considerable rear end damage and had to be towed away.
The applicant left the scene without getting out of his vehicle or making contact with anyone (summary charges 6, 7 and 8 — fail to give name and address after an accident). As he drove away through surrounding streets, his friend, Cameron McKenzie, observed some of this driving of the applicant’s vehicle and telephoned the applicant. The applicant told Mr McKenzie that his car had been stolen. As a result, Mr McKenzie advised him to notify police. The applicant called ‘000’ and reported that his car had been stolen.
Police located the applicant’s vehicle in a nearby street and, when police arrived, the applicant was waiting with the vehicle, which was broken down and unable to be driven. The applicant told police that he had observed his car being stolen when he had been in the company of his two friends, Mr McKenzie and Mr Brent Gillin. He said that he and Mr McKenzie had pursued the vehicle in Mr McKenzie’s car. He had found the car broken down, and he said that he had seen two offenders running away from the vehicle.
Police contacted Mr McKenzie to confirm the account given by the applicant. Mr McKenzie did not confirm the applicant’s account. Police formed the view that, contrary to his version, the applicant had been the driver of the vehicle. A preliminary breath test returned a positive result, and a subsequent evidentiary breath test, completed at Warrnambool Police Station, returned a result of 0.039 per cent. As the holder of an expired probationary licence, the applicant was subject to a ‘zero’ breath alcohol limit (summary charge 3 — exceed prescribed concentration of alcohol).
On 24 June 2014, police attended the applicant’s home and advised him that they did not believe his car had been stolen and that they were of the view that he had been the driver. The applicant told them that he wished to maintain his report that the car had been stolen and he provided police with a statement of some five pages to that effect. Police advised him that there were legal consequences for making a false report.
Within half an hour of police leaving his home, the applicant sent a text message to Mr McKenzie as follows:
We left the pub, seen my car drive past near the church, drove up main street, seen car wreck, drove up near city memorial bowls club, did u-turn and found my car there and you dropped me off and left. That is all you need to say okay.
Later, the applicant sent Mr McKenzie the following text message:
Call me when you can please.
Next day, the applicant sent McKenzie the following further text message:
Bro we need to talk, I just made a statement about my car being stolen and you need to know in case the police contact you.
Mr McKenzie did not reply to any of the messages and notified police (charge 2 — attempting to pervert the course of justice).
On 25 August 2014, police executed a search warrant at the applicant’s home. His mobile telephone was seized and examined. A video clip was found of the applicant recording himself charging and firing a homemade PVC ‘orange gun’, which was not registered. The applicant pleaded guilty and was sentenced on the basis that an orange gun was classed as a Category E long arm (charge 1 — using an unregistered category E longarm). A police firearm and toolmark examiner, Alan Pringle, described the ‘orange gun’ as follows:
… The firearm was PVC plumbing tube fitted with a PVC chamber with screw cap into which a piezo electric ignition device is fitted.
This type of firearm is fired by placing a projectile, which may consisted (sic.) of a piece of fruit or glass soft drink bottle, of an appropriate diameter into the barrel forward of the chamber. An aerosol product such as fly spray or deodorant containing a hydrocarbon based propellant is sprayed into the chamber followed by screwing on the cap. Pressure is applied to the piezo electric button to create a spark which then causes the gas propellant to rapidly combust, generating pressure which discharges the projectile.
Resolution
The applicant was born on 15 August 1989, and is now aged 26 years.
A report of Dr Robyn Stargatt, a clinical neuropsychologist, dated 5 January 2014, makes clear that the applicant suffered an acquired brain injury in a car accident in 2006. His intellectual capacity is in the ‘borderline’ range, and his full scale IQ is a score of 76. In Dr Stargatt’s opinion, the applicant labours under a mild neurocognitive disorder due to the traumatic brain injury, and suffers with anxiety and severe levels of depression.
Further, a clinical psychologist, Michael Daffern, in a report dated 29 May 2015, thought it likely that the applicant was suffering from impaired neuropsychological functioning at the time of offending. Mr Daffern regarded it as likely that, as a consequence of his acquired brain injury, depression and personality problems, the applicant would find imprisonment more onerous than a person unafflicted by those disabilities. The applicant had a tendency towards reckless behaviour, designed to attract attention and friendship. He had started using illicit drugs in adolescence and abused alcohol. Mr Daffern was of the view that the applicant would benefit from intervention directed to his substance abuse, and so as to enhance his employment prospects.
The applicant has lived in Warrnambool since commencing year 7. He left school in year 9 to commence a trade. Previously, he has been employed as a roof truss assembler, and had been completing a Certificate 4 in Small Business with TAFE. Generally the applicant resided with either his mother or grandmother, and had been residing with his grandmother at the time of this offending. He has two children. At the time of sentence the applicant was the subject of a family violence intervention order which prohibited him from seeing his children. Following the breakdown of the relationship with his children’s mother, the applicant became addicted to methylamphetamine.
By early 2014, the applicant had committed a number driving offences, two contraventions of family violence intervention orders and a charge of damaging property.
The applicant’s criminal history, as at January 2014, consisted of a number of driving offences from 2011, two contraventions of family violence intervention orders and a charge of intentionally damage property. On 6 March 2014, however, the applicant was sentenced to an aggregate sentence of three months’ imprisonment, coupled to a nine month CCO, for further contraventions of a family violence intervention order, possession of a controlled weapon without lawful excuse, possession of methylamphetamine, making a threat to kill and stalking. Then on 10 June 2014, the applicant was convicted and fined with respect to two charges of conduct prejudicial to the security, good order and management of a gaol. He was released from custody on 6 June 2014, about two weeks prior to the instant offending. Later, on 19 January 2015, while the present charges were pending, the applicant was dealt with in the Magistrates’ Court with respect to further contraventions of a family violence intervention order. The magistrate revoked the nine month CCO and sentenced the applicant to serve a period of four months’ imprisonment.
On the plea, counsel told the sentencing judge that the applicant was finding prison particularly difficult, since he was at Fulham Prison — some ten hours away from Warrnambool — which prevented his family from visiting him. The applicant was supported during the plea hearing by his mother, grandmother and brother. Counsel described the applicant’s relationship with his family as excellent, and tendered a letter from the applicant’s grandmother in support of him.
As we have said, we are of the view that the concessions made by the respondent were proper. The applicant will have to be resentenced. In light of the various factors we have adverted to, we would not disturb the fines imposed on summary charges 3, 5, 10 or 11. We would impose a fine of $250 on charge 9, unlicensed driving. Charges 6, 7 and 8 — failing to give name and address after an accident — are all part and parcel of the same conduct. It is appropriate to impose an aggregate sentence of seven days’ imprisonment on those charges.
Further, charge 16, dangerous driving, merits a sentence of two months’ imprisonment. The applicant’s driving was outrageous. As his plea acknowledges, the applicant’s erratic and unsafe driving endangered the public, and, as it transpired, resulted in substantial damage to property. Indeed, it might be thought fortunate that the applicant’s shocking driving did not result in more dire consequences. His disgraceful behaviour when behind the wheel of his motor vehicle calls for a period of imprisonment to deter him and others from like behaviour.
With respect to the use of the ‘orange gun’, charge 1, in our view the applicant’s offending called for neither imprisonment nor a CCO. When interviewed by police, the applicant said that he had memory loss related to a medical condition, and he did not recall recording himself with the orange gun. He accepted, however, that he did not have a firearms licence and that he knew that what he had done was illegal. As we have mentioned, there was no suggestion that the orange gun was to be used for any wider criminal activity. Further, it seems plain that the applicant’s use of the orange gun was fleeting, and did not cause any danger or concern to others. In our view, the circumstances of the use of the orange gun called neither for imprisonment nor for the imposition of a CCO. We would impose a fine of $500 on that charge.
The most serious offending was charge 2, attempting to pervert the course of justice. A sentence of nine months’ imprisonment is appropriate.[11] The sentencing judge observed that the charge of attempting to pervert the course of justice ‘is a serious charge because it tends to undermine the integrity of the criminal justice system and causes the unnecessary diverting of police resources’. We agree. In this case, although it might be said that in his early dealings with the police the applicant’s conduct was impulsive and lacking much in the way of premeditation, the same cannot be said of his later endeavours to recruit Mr McKenzie to support his cynical attempt to divert police from the truth. A sentence of imprisonment is required to reflect the needs of both general and specific deterrence, and to denounce and punish the applicant’s conduct.
[11]Cf Saleem v The Queen [2014] VSCA 190; Smith v The Queen [2014] VSCA 241. See also Zotos v The Queen [2014] VSCA 324.
Before proceeding further, we acknowledge that counsel submitted that a CCO might be appropriate in addition to a moderated sentence of imprisonment. There are two reasons why we would not impose a CCO, despite the submissions of counsel. First, the applicant has a history of failing to comply with CCOs. He has previously been afforded that sentencing opportunity, and we see no benefit in giving him a further such opportunity. Secondly, there are positive signs of incipient rehabilitation. Whilst imprisoned, the applicant has done courses designed to increase his prospects of employability upon release, and he also has strong family support. These matters are likely to more positively promote his prospects of rehabilitation than a further CCO.
To summarise, we would impose a sentence of nine months’ imprisonment on charge 2 (attempting to pervert the course of justice); two months’ imprisonment on summary charge 16 (dangerous driving); and an aggregate sentence of seven days’ imprisonment on summary charges 6, 7 and 8 (failing to give name and address after an accident). We would order that one month of the sentence on summary charge 16 be served cumulatively with the sentence on charge 2, leading to a total effective sentence of 10 months’ imprisonment. Further, we will make an appropriate declaration of pre-sentence detention.
On charge 1, we would impose a fine of $500. On summary charge 3, we would impose a fine of $500; on charge 5, $100; on charge 9, $250; on charge 10, $500; and on charge 11, $100.
All other orders made by the County Court will be confirmed.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that but for the plea of guilty we would have sentenced the applicant to be imprisoned for 18 months.
For the avoidance of doubt, our overall intention is set out in the following table:
Charge Offence Sentence Cumulation 1 Using an unregistered category E longarm $500 fine — 2 Attempt to pervert the course of justice 9 months’ imprisonment Base Summary Charges 3 Exceed prescribed concentration of alcohol $500 fine — 5 Drive in a way that makes unnecessary noise $100 fine — 6 Fail to give name and address after an accident 7 days (aggregate with charges 7 and 8) — 7 Fail to give name and address after an accident “ — 8 Fail to give name and address after an accident “ — 9 Unlicensed driving $250 — 10 Use unregistered vehicle $500 fine — 11 Use unroadworthy vehicle $100 fine — 16 Dangerous driving 2 months’ imprisonment 1 month Total effective sentence 10 months’ imprisonment Non-parole period Nil
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