Director of Public Prosecutions v Bryce
[2022] VCC 288
•8 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01712
Indictment No. M10074922
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON BRYCE |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2022 | |
DATE OF SENTENCE: | 8 March 2022 | |
CASE MAY BE CITED AS: | DPP v Bryce | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 288 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: plea of guilty; aggravated burglary; summary offences of unlawful assault; commit indictable offence whilst on bail; and assault emergency worker on duty; whether circumstances so unusual as to warrant a non-custodial sentence.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: DPP v Gould [2015] VCC 87; DPP v Devries [2014] VCC 1611; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191.
Sentence: Convicted and sentenced to a 3-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Fargher | Office of Public Prosecutions |
| For the Accused | Mr P. Crowle | Richard Reville Lawyers |
HER HONOUR:
Introduction[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1Jason Bryce, at about 7PM on Monday 11 January 2021 your neighbours, Sujan Thapa and Nancy Thapa-Batas, were quietly minding their business in their home when they heard you first yelling in the street outside and then banging on their front door. Fearing you would damage the door, Mr Thapa opened it, hoping to calm you down and you immediately barged past him into the lounge room. You tried to hit Mr Thapa with a ‘shoes off please’ sign which you had removed from the front door and threw punches at both Mr Thapa and Ms Thapa-Batas, ignoring Mr Thapa’s pleas to go outside to talk.
2You then yelled at Mr Thapa, ‘I am an Australian, you don’t have respect’ before punching him to his left temple with what appears to have been a glancing blow as it did not hurt. Mr Thapa could see how scared his wife was and kept asking you to leave and you did.
3Out on the street you continued to be aggressive and abusive to the gathered neighbours who restrained you until police arrived. You were abusive to the attending police, making homophobic slurs, and to ambulance paramedics who were called because of a cut on your head. You were slurring your words and unsteady and appeared to be intoxicated.
4You were arrested and taken to Werribee Police Station. You agreed to calm down if you were uncuffed but became abusive again during the search of your person, making more homophobic slurs and resisting the police. Finally, when the search was over and you were dressing yourself, you swung your arm out without warning and slapped police officer Billy Giordimaina with your open hand to the left side of his face. The force was low to moderate and did not cause any injury. You were handcuffed again and placed into the cells. You were charged but not interviewed because of your behaviour and intoxication.
5The next day you were taken to court for a filing hearing and released on bail. There was a contested committal on 11 August 2021 during which five witnesses were cross-examined, including Mr Thapa, Ms Thapa-Batas, and First Constable Gordimaina, but which concluded with you pleading guilty.
6On 15 February 2022 you pleaded guilty before me to one charge of aggravated burglary, being entering a building as a trespasser with the intent to commit an offence involving an assault, knowing that a person was then present or being reckless as to whether or not a present was present.
7You also pleaded guilty to related summary offences, being: unlawful assault of Sujan Thapa, which is summary offence Charge 2; commit an indictable offence, being aggravated burglary whilst on bail, which is summary offence Charge 4; and assault First Constable Billy Giordimaina, an emergency worker on duty, which is summary offence Charge 1.
8A plea on your behalf was conducted before me on the same day and it now falls to me to sentence you for your conduct. Notwithstanding the seriousness of the offence of aggravated burglary, your Counsel, Mr Crowle, submitted that a Community Corrections Order was within range in the unique circumstances of your case.
9The Prosecutor, Ms Fargher, accepted yours was an unusual case but submitted that a term of imprisonment was still warranted, albeit one that could be combined with a Community Corrections Order, meaning less than 12 months.
10As I said during your plea, the question for me is whether your case is so unusual as to justify a non-custodial disposition, that being a most unusual sentence for such a serious offence as aggravated burglary.
11In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[2] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
Your personal circumstances
12Turning first to your personal circumstances which were outlined in Defence submissions.
13You are a 55-year-old man and currently single.
14You are well educated, completing your secondary schooling in 1984 and a Bachelor of Social Work at the University of New South Wales in 1991. After completing your degree, you held a variety of professional positions. You were a research/project officer at the New South Wales Aboriginal Land Council until 1993, and a journalist for the Australian Broadcasting Corporation until 1999.
15Your family then moved to Broken Hill, where you worked as a youth worker until 2007 when your marriage broke down and you moved to Melbourne with your three young children. You returned to work as a journalist on a part-time basis while raising your children on your own.
16In 2012, you began teaching swimming in addition to your other employment. Between 2015 and 2018 you worked as a Koori Education Officer at Port Phillip Prison.
17Like many people, in 2020 you lost your job and your swim teaching work due to COVID-19. Luckily, you found part-time work as a media advisor with a finance industry company called Next Payments, and are still working there. A letter was provided by Tim Wildash, CEO, noting your positive behaviour and the high regard in which you are held.
18You have a passion for teaching swimming and continue doing it to this day. You have a history of contributing to the community through your volunteer work. You have volunteered as a swimming teacher and coach at Special Olympics Australia, an organisation which assists people with an intellectual disability, for a number of years. You are the secretary and coach of the Melbourne Open Water Swimming Club, and have been involved in volunteer fund raising for MS swimming, multiple sclerosis swimming. You have also been a volunteer lifesaver.
19Multiple character references were provided to the Court by your managers, colleagues, and clients within the swimming industry attesting to your popularity and gentle and calm manner.
20Your children are now adults. At the time of this incident, you had a difficult relationship with your youngest son, now 21, which you attribute to his drug taking. Shortly afterwards he moved to Broken Hill to live with his older brother. You have worked on repairing your relationship with him and now speak regularly. Your relationship with the other two children is good.
21You attribute your offending to alcohol intoxication. You say that in the lead up to the incident you began drinking more and more to cope with your concern over your son’s drug use and because of lockdown. On the day in question, you say you argued with your son over his drug use and then drank to excess. Apart from being a somewhat hypocritical response to your son’s substance abuse, being intoxicated is absolutely no excuse for your behaviour on this night, as you know. It is to your credit however that post offending you have sought to address your own issues with substances, namely alcohol and cannabis, as well as your mental health. In that regard, you completed Drug and Alcohol counselling at Western Health Services between February and March of 2021, telling the counsellor, Maria Sicura, that you had not drank since the offending and had supervised Urinalysis to prove it.
22You also continued to seek treatment from your psychiatrist, Dr Michael Maloney, who provided two letters to the Court dated 31 January 2022 and 11 February 2022. Dr Maloney has treated you since 2011, albeit with a four year gap between 2016 and March 2020. He has diagnosed you as having Mixed Anxiety Disorder with features of Social, Obsessive-Compulsive and Generalised Anxiety with chronic Dysthymia; alcohol and cannabis disorder; and Borderline Personality Disorder. Although he indicates you have complied with all treatment recommendations since March 2020, your offending obviously occurred during that period. More significantly, he also reports that you have been abstinent from alcohol and cannabis since the offending and that this has led to a reduction in your anxiety and impulsivity and a ‘significant improvement’ in your physical and mental health.
23That you are currently abstinent from alcohol has been further confirmed by a letter to the court from one of your referees, Dora Levakis, who has known you since May 2021. You have also provided to the Court evidence of some recent urine drug screens.
24Eight days after the offending you made an unfortunate decision to leave a note of apology and $250 in your neighbours' letter box. This was in breach of an intervention order and your bail and you were later charged, receiving a non-conviction adjourned undertaking on 7 December 2021. Wisely, soon after you did this you took steps to distance yourself from your neighbours by moving away from the area. You now live in a shared rental property in Newport.
25Although you are currently single, you enjoy ongoing support from your colleagues, supervisors, and clients, as well as from your family.
Objective Gravity of your offending and moral culpability
26Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the inherent seriousness of the offence of aggravated burglary, the maximum penalty of 25 years makes it clear.
27The maximum penalties of your other offences reflect the inherent seriousness of those offences and are as follows:
·Unlawful assault is punishable by a maximum of 15 penalty units or three months' imprisonment;
·Commit an indictable offence whilst on bail is punishable by a maximum of 30 penalty units or three months' imprisonment; and
·Assault emergency worker on duty is punishable by a maximum of 60 penalty units or six months' imprisonment.
28Without any warning and with absolutely no provocation you barged into the home of your neighbours, a place where they were entitled to feel safe and secure. You then proceeded to try to assault them with your fists and the sign that you had taken from their door. You managed to hit your male victim and had no compunction about trying to strike a woman. You continued to act outrageously even after the police and ambulance were called, refusing help from paramedics, resisting and striking out at police, including back at the police station. As if all of that was not bad enough, you were on bail at the time.
29As opposed to that, your actions were unpremeditated and unsophisticated, and you were clearly irrational. The offending took place during daylight and you entered through an open door. Further, whether by accident or design, your blows to Mr Thapa and the police officer were relatively minor and you apologised to the police officer shortly after. Moreover, whilst it was aggravating to use the sign as a weapon, the photographs reveal it to be relatively small and apparently light weight, possibly plastic.
30The reasons proffered through your Counsel for your actions make little sense. I accept you were upset about your son’s drug use, but your neighbours had nothing to do with that. Clearly your intoxication contributed but that does not mitigate your offending, nor explain why you targeted your neighbours. Your comments about being Australian raise the spectre of racism, but the Prosecution disavows any suggestion that was your motivation. Whatever the reason, you admit that your actions were totally inappropriate, and they were.
31As serious as your conduct was, I consider it to be at the lower end of the spectrum of seriousness for your particular offences and your moral culpability likewise.
Current Sentencing Practices
32One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[3]
[3] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
33The most recent Sentencing Advisory Council Sentencing Snapshot, December 2021, for the offence of aggravated burglary indicates that approximately 91 per cent of people sentenced for the offence over the five years between 1 July 2016 and 30 June 2021 received an immediate term of imprisonment ranging from 23 days to eight years, with three to four years being the most common sentence at 27 per cent (that is, 106 out of 387 non-aggregate terms). This wide variation of sentences reflects the disparity in seriousness of the offence.
34Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases. Such sentences are not binding precedents to be applied or distinguished, nor do they set the outer parameters of appropriate sentences, but they are a guide or yardstick against which to measure any sentence proposed in the instant case.
35I have had regard to the two cases to which I was referred by Mr Crowle, both County Court sentences.[4] He submitted, and I accept, that they were more serious instances of aggravated burglary resulting in corrections orders in 2014 and 2015.
[4] DPP v Gould [2015] VCC 87; DPP v Devries [2014] VCC 1611.
36However, whilst they are informative, as I have already said, no two cases are ever truly the same. Personal and mitigating circumstances always differ. Further, there is no single correct sentence and sentences imposed in other cases are not binding. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Impact of your offending
37I am required to take into account the impact of your offending on your victims and their personal circumstances.[5]
[5] Sentencing Act (n 2) s 5(2)(daa), (da) and (db).
38Your three victims declined to make victim impact statements. However, self-evidently the experience would have been frightening to your neighbours and this was confirmed by their statements to police.
39It may also be assumed that your assault of First Constable Billy Giordimaina would not only have been painful, but also undermined his sense of security in his job.
Plea of Guilty, co-operation and remorse
40You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at an early stage. Your plea of guilty did not come at the first opportunity, and unfortunately your victims were not spared the ordeal of giving evidence. However, I accept their cross-examination at committal had a legitimate forensic purpose and you did plead guilty immediately afterwards. In so doing you facilitated the course of justice and took legal responsibility for your crimes.
41Our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[6]
[6] See, eg, Worboyes v The Queen [2021] VSCA 169 [39] (‘Worboyes’).
42Moreover, in your case I accept that your plea of guilty is accompanied by genuine remorse, entitling you to an even greater discount. In that regard I have noted the letter you have written to the Court, and the fact you have been honest and open with your numerous character referees.
Your character and risk of reoffending
43You have a limited criminal history. You have no prior court dispositions in Victoria, and three in various Local Courts in New South Wales. In 1998 you appeared for the offence of interfere with council property, and were placed on a good behaviour bond. In 1992 you appeared for a charge of a low range reading of drink driving, and you were fined and your licence was cancelled and disqualified for two months. In 2001 you appeared for the offence of damage property and were placed on another good behaviour bond. They were all in New South Wales, as I have said.
44At the time of these offences you were on bail for criminal damage and an exceed prescribed concentration of alcohol; that is, drink driving, both committed on 25 October 2020. The criminal damage was of a car belonging to an ex-romantic partner of yours. On 1 July 2021 you received an adjourned undertaking with a $1,500 contribution to the Court fund.
45Following these offences, you breached the intervention order your neighbours had obtained against you in the manner I have previously outlined, and received yet another adjourned undertaking.
46Although damaging your ex-partner’s car is worrying, the present offending is by far your most serious. Whilst I do not have details of all your prior matters, they are at least consistent with problematic alcohol consumption, as occurred on this night.
47You have a commendable history of employment and community engagement. You also have an excellent family and community support network. Your troubles seem to stem from alcohol and possibly cannabis consumption which you have sought to address. Your prospects of rehabilitation are excellent if you can resist the temptation to start consuming these substances again.
The burden of imprisonment
48In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you.
49It is generally acknowledged that a term of imprisonment during the pandemic is harder than at other times. There is the worry of contracting the virus in prison, the curtailment of various activities and programs, the reduction or suspension of personal visits and occasional lockdowns. They are all additional burdens.
50No material has been put before me to suggest that prison would otherwise be particularly burdensome for you, although I do note your mental health issues. I also accept that the prospect and fact of imprisonment for a 55-year-old man with a very limited criminal history would be frightening and difficult.
Purposes of Sentencing
51I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.[7] A custodial sentence must only be imposed as an absolute last resort and then must be the absolute minimum required.
[7] Sentencing Act (n 2) s 5.
52Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.
53There is no question as to the seriousness of your offending. A person’s home should be their sanctuary. They should not fear that someone is going to barge in, let alone abuse, insult, and assault them. Similarly, police are entitled to carry out their duties without fear of being abused and assaulted by drunken combative individuals.
54General deterrence and denunciation are of prime importance in the sentencing equation for your offences. Specific deterrence and community protection also have some roles to play in your case. Your rehabilitation is an important consideration, given your excellent prospects and the fact that it is by your rehabilitation that the community will be best protected.
55I have had you assessed for a Community Corrections Order and you have been found suitable and indicated your consent. The central issue for me is whether to impose that on its own or in combination with a term of imprisonment.
56It is clear that Community Corrections Orders have a punitive element and can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general deterrence whilst promoting rehabilitation. The suitability of properly conditioned community corrections orders of lengthy duration for serious offences has been affirmed by our Court of Appeal previously.[8]
[8] See, eg, Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191.
57I have already set out in full the matters in your favour and against in the course of these reasons. There is no need to repeat them. After weighing these competing considerations, and having particular regard to the cases of Boulton[9] and Worboyes,[10] I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a Community Corrections Order, notwithstanding the seriousness of your offences.
[9] (2014) 46 VR 308.
[10] Worboyes (n 6).
Sentence
58Could you stand up please.
59On all charges I convict and sentence you to a single Community Corrections Order. I am imposing a single order because your offences are founded on the same facts and/or are of a similar character. The order will last for three years, so that is 36 months. You are to report to the Werribee Community Correctional Centre within two working days.
60As well as the mandatory conditions, which include that you not commit another offence, as well as various other things such as you must not leave Victoria without first getting permission to do so and you must obey all lawful instructions from and directions of the Secretary, I have imposed some special conditions and they are as follows:
· You are to be under the supervision of a Corrections officer for the duration of the order;
· You are to perform 350 hours of unpaid community work over the period of the order;
· You are to undergo assessment and treatment, including testing, for drug abuse and dependency;
· You are to undergo assessment and treatment, including testing, for alcohol abuse and dependency;
61I direct that all of the hours that you satisfactorily undertake in treatment and rehabilitation are to be counted towards the 350 hours of unpaid community work. In other words, they come off those 350 hours. Your Counsel will explain that order in more detail. You must make sure you comply with that order, because breach of the order is an offence in itself and in addition you are liable to be re-sentenced for the original offences.
62The Corrections Order I have imposed is a long order. That is because of the seriousness of your offending which would ordinarily call for a term of imprisonment, and because I think having you supervised for that length of time is the best way of ensuring you maintain abstinence and continue your rehabilitation.
63I want you to understand that these are extraordinary times where more leniency is afforded in sentencing than at other times and further, you are being given an extraordinary opportunity to avoid a term of imprisonment. If you fail to comply with the Corrections Order I will know that my faith in you has been misplaced and a term of imprisonment will be the almost inevitable consequence. Do you understand that, Mr Bryce?
64OFFENDER: Yes, Your Honour.
65HER HONOUR: And you understand the order that I have imposed?
66OFFENDER: Yes, I do.
67HER HONOUR: If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of two years with a non-parole period of one year and six months.
68Mr Bryce, I have signed the Community Corrections Order. My associate will take it up to you and you will then sign it as well and, as I say, I'm sure that your Counsel will explain the order in more detail but I have already set it out in quite some detail for you.
69You really must not drop the ball. If you breach the Order you will come back before me for re-sentencing and as I said, because this is quite an extraordinary disposition for serious offending you would be looking at a term of imprisonment if you were to breach the order. I'll get you to sign that order.
70Are there any other matters I need to attend to before I adjourn?
71MS FARGHER: No, Your Honour.
72MR CROWLE: No, Your Honour.
73HER HONOUR: Thank you. Adjourn the Court.
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