Director of Public Prosecutions v Byl
[2024] VCC 1159
•17 July 2024 and 25 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00181
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN BYL |
---
JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 April 2024; 23 May 2024 and 17 July 2024 |
DATE OF SENTENCE: | 17 July 2024 and 25 July 2024 |
CASE MAY BE CITED AS: | DPP v Byl |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1159 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Plea of Guilty – Sentence
Catchwords: Commonwealth and State Offences – Stalking – Use carriage service to groom persons under 16 years of age – Imprisonment – Recognisance Release Order.
Legislation Cited: s 19AHA(3) of the Crimes Act (Vic); s 20(1)(b) of the Crimes Act (Cth).
Cases Cited: DPP v Meyers [2014] VSCA 314.
Sentence: State – Total Effective Sentence: 18 months imprisonment.
Commonwealth – Total Effective Sentence: 30 months imprisonment.
Commonwealth sentence to commence 6 months after the commencement of the state sentence. Recognisance release order with release after 14 months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Ambesi | Office of Public Prosecutions |
For the Accused | Mr P. Kounnas | Leanne Warren & Associates |
HIS HONOUR:
1 Darren Byl, on the 21st of February 2024, I heard and determined your application for a sentence indication relating to four sexual charges. There were three Commonwealth offences of grooming a child under the age of 16 and one State offence of stalking.
2 The total effective sentence that I indicated was three years' imprisonment with a recognisance release after 20 months.
3 Ultimately, you accepted that indication and pleaded guilty on arraignment. Your plea then proceeded over two hearing days at least.
4 The victims of these grooming offences was firstly a young teenager. She was also the victim of the State charge of stalking her. The offending against her was from 14 February 2016 to 24 December 2021, for the stalking offence and from 14 February 2016 to 29 October 2018 for the grooming offence.
5 The second victim was a young teenager, who at the time was in Africa. Your offences against this victim was for a very short time, being
26 to 29 August 2021.
6 The third victim was in fact police officer pretending to be a teenager. The offending period was about six weeks from 3 November 2021 to
17 December 2021.
7 As to what you did, the prosecution outlined the relevant facts and circumstances in a summary of a prosecution opening which was dated
15 April 2024.
8 The victim of your stalking and the first charge of grooming was 13 when your crimes against her commenced. In 2015, you contacted her via the social media platform called Kik.
9 My experience of these grooming cases is that Kik is or was a platform used by teenagers to communicate with each other. You initially lied in claiming that you were a 13-year-old teenager yourself.
10 Your communications with her were regular, perhaps at times daily, and became in her words, ‘flirtatious’. I take this to mean that there was a sexual orientation to your communications. The victim was a vulnerable child who did not then know that you were a 50 or nearly 50-year-old married man. She unknowingly told you many personal details, such as her address, her school, the makeup of her family and the sad fact that her father had died when she was about seven.
11 With these personal details you were then able to commit aspects of the crime of stalking, not just online but in the streets and park near where she lived and where she went to school. It is always concerning when this type of offending, that is the interactions with the victim, moves into real life as it were and not just online.
12 Around Valentine's Day, that is 14 February 2016, you bought the victim a large teddy bear. You told her to go to a park – that you knew was nearby to where she lived – to find and keep your gift. This endeavour to ingratiate yourself and buy favour was a concerning aspect of your offending.
13 However, at the time she and her younger sister went to the park and found the teddy bear. You had driven to the park and remained nearby in your car, observing the victim find what you had left for her. Although you made no attempt to speak to her or there and then let her know you were observing her, this is a serious dimension to the crimes and I take into account as I will in outlining the gravity of the offences, what you did in respect of this aspect of your offending.
14 You did later indicate or tell her that you had observed her in the park. You made it clear to her that you had also observed her near a school.
15 What occurred thereafter, and for a very significant period of your interactions with her, are summarised by the prosecution in these terms. I will read from the summary, paragraph 11.
16 After the teddy bear incident, if I can describe it like that, in February 2016, the summary goes on to say that you continued to message almost daily. You often attempted to initiate sexualised conversation which caused the victim to, ‘Shut down’ those topics. In 2016 after receiving the teddy bear you sent messages to her that you had seen her, as I have described, and what she was wearing. You spoke about her getting off a bus near a primary school where she had gone to collect her younger sister.
17 She understandably became fearful that you had followed her on the bus that she had taken from her high school to the primary school. This aspect of the stalking was particularly frightening for the victim.
18 In March of 2016, you sent messages from a social media application, this time Instagram. You told her that you missed her and you asked her to ‘accept’ you. In 2016 when she was still 13, communications recommenced. You were described as communicating with her using these words from the summary:
'At this time they were always really sexual in nature'.
19 Not long after this incident, having told her initially you were 13 and then at some stage that you were 18, you informed the victim that you were actually
43 years old which did underplay your age slightly. She told you that you could not talk or there could be no further communication because of your age.
20 There was a period when there was not communication, however it resumed via Instagram direct messaging and then social media platform Snapchat when she was 15. At this time your regularly discussed sexual matters with her. You said that you wanted to take her virginity and teach her about oral sex, among other sexual topics. You sent her sexualised memes which described sexual activity between, 'Little girls and daddies'.
21 You told her that she hurt you by disappearing and saying hurtful things to you. You often asked her to see what she was wearing and talked about baby girls being with daddies in sexual circumstances, which I do not need to describe.
22 Her mother became aware of these communications in October 2018 to her great distress. There were difficulties that followed that, in terms of the complainant reporting the matter to the police. The matter was reported to the police by the mother in October 2018 and material provided to the police from the victim's phone. However, the victim, herself, needed time to be able to work out if she would make complaint to the police which she ultimately did at a later point.
23 But your stalking of her continued. You messaged her concerningly in November 2020, that is, after she had turned 18, indicating to her that she was, 'Finally legal'.
24 You also contacted friends of hers using a different name, being Dale, and there were numbers attached to it.
25 This was brought to the attention of the police at a later time. They were able to secure your phone which indicated amongst other things that you had gone to the web page of Victoria Legal Aid, looking at advice regarding the legality of sexual contact with children aged between 12 and 15 and between 16 and 17. You did that in June 2018.
26 What can be seen is that your conduct escalated with this victim, and was directed or motivated by your perverse sexual gratification. It was persistent with you using multiple accounts to keep up your grooming or contact and stalking. That is, that when you were told not to contact her and blocked or in some way prevented from communicating with her, you would establish another account and seek to contact her or actually contact her via that different account.
27 I will pause before outlining what you did with respect to the other charges involving the young child in Africa and the covert police officer.
28 What I turn to immediately is the impact of your dreadful offending on the victim and her mother. Their victim impact statements revealed just how deep and enduring the impact of these crimes are on victims.
29 The victim said that: 'As a result of this crime I began feeling very anxious through my teenage years or my teen years, including feeling paranoid about being watched in public, feeling unable to catch public transport, had a fear of being watched'. She was always wanting to be in company of those she knew to ensure she felt safe.
30 This anxiety escalated to physically feeling nauseous and ill, caused her to miss a lot of school, something that she had previously enjoyed and was a high achiever. Her grades dropped, causing further anxiety. She said that she had to because of this trauma have repeated therapy and ongoing support to be able to continue and ultimately hopefully heal from the crime.
31 It had impact on her relationships. She lost trust significantly. She was unable to form strong relationships and it caused her to lose friends that she had previously been very close with. It influenced her ability to interact with others, including younger men and influenced her capacity to have future relationships with or positive future relationships.
32 She says that she did enter some unhealthy relationships in her teen years, and this exacerbated matters. She struggles with trusting men and maintaining healthy relationships, both as friends and romantically. She is less open to welcoming new people.
33 As I have indicated, your crimes and the effect on her impacted negatively upon her schooling and ultimately upon her ATAR score which caused her to be unable to enter the course that she desired following high school.
34 She says under a heading, 'Before and After Comparison':
It is due to this crime occurring when I was very young, I feel it had a great effect on who I became as a person. I feel that this influenced me to become less trusting of others, less happy and confident person as well as becoming aware at a young age of the attention of men, which impacted my self-esteem and body issues that I suffered from a young age. Before this crime was committed, I was someone who very easily made friends, was driven towards success in many aspects of my life including academics, sports and socially and I was very confident and extraverted. The impact of this crime has been losing many of these things for me or struggling to maintain parts of my life that I worked very hard to build. My family and I have always been very close and due to the impact on our relationships we are still rebuilding these relationships back to where they were previously.
35 The victim's mother wrote that she was shocked to hear about the communications which she did hear through a friend and her best friend's mother. There was reluctance, as there sometimes is for peers, or those of the same age, to confide in adults, as they do not wish to betray a trust. But she was shocked and she was terrified, understandably, about what it all meant and scared about what may have occurred. She was angry, scared and she was totally, as she said, guilt ridden.
36 I pause to indicate of course she should not be made to feel guilt ridden as a parent.
37 The crime and the offending was totally, and utterly, and solely your fault,
Mr Byl. But she said that she not only felt guilt ridden, but she felt she had let down those in her family, her daughter, her other child. Sadly, she felt she had let her husband down who had passed away when her daughter was seven years old. She felt very alone. She indicated when she learnt about you giving the toy and watching both girls when they collected, this whole part of the process just induced terror and shame in her. Again, she should not be made to feel that way.
38 She is hypervigilant. I can deduce from this that is she is fearful for whenever her daughter left the house. She concludes it has been a stressful, emotional and traumatic experience finding out what happened, working through the investigations with the police and being part of the court process.
39 'I have struggled with challenging feelings and emotions. I have questioned my self-worth. It has impacted my mental health. It has resulted in me requiring time off work at times and it has flamed the shame and guilt I feel for letting down [my daughter], her sisters –' and her late husband.
40 The second victim was a 14-year-old girl, then living in Africa. Your interactions with her were brief, relative to other example of this offence, such as your grooming conduct with respect to the first victim. While the content of your text messaging was sexualised, it was not as explicit or demanding like so many other examples of this crime are that come before this court.
41 This offending involving what you admitted was grooming, was said by your counsel to be in the mid-range of this type of offending in terms of gravity.
42 In my view, it is not at the serious end of the spectrum for this crime. It remains concerning because along with the other charges it reveals your pattern of inappropriate contact with young female children. It also adds an element that it had an international aspect, that is, the internet provides those like you with opportunity to contact children all over the world.
43 That said, any punishment for this particular offence must be proportionate to what you actually did, that is, the content of your texts that constitutes this grooming.
44 The third victim was a covert police officer who had set up a Snapchat account pretending to be a 15-year-old young girl living in Cranbourne called Lucylu. It is important to understand that you initiated contact with this Snapchat account, believing you were interacting with a real 15-year-old girl.
45 After a few interactions you said you were a 32-year-old man. You asked if being twice her age bothered her. In the next few weeks there were interactions where you asked to see what you thought was Lucylu and what she was wearing. You asked her more than once this question, which you sexualised, of what she is wearing.
46 In the period following which was from the 17th of the 11th to the
27th of the 11th there were sporadic interactions but there was an elevation in the dreadful sexual aspect of what you did and sent to who you thought was a child. This included photographs and videos of you masturbating. You asked if the victim masturbated or watched pornography. There were other interactions that had a grooming aspect to it.
47 In May 2022, you were arrested and the phones that you had were seized and later examined revealing much of what has been outlined here already. In your record of interview that followed you made admissions to engaging in sexualised and inappropriate online interactions with the first victim and with the victim who you believed was Lucylu.
48 You confirmed many of the facts and conduct goes to establish the stalking offending, including the leaving of the teddy bear, the watching of the victim going to find the gift with her younger sister and also that you had seen her on the school bus or near the school bus.
49 It must be acknowledged that you did make admission in the record of interview, though this stands in contrast to the fact that you contested and denied this offending right up to the eve of your trial in the County Court.
50 I have, in a broad way, already referred to the issue of gravity of each of these crimes. What must be factored into my analysis of the gravity of these particular crimes is the following. That is, the young age of the victims being between
13 and 15.
51 Secondly, the age disparity. You, at the time, were in your late 40s and early 50s, a mature adult man.
52 Thirdly, there was regular and persistent communication and grooming, especially in the case of the first victim. In respect of those charges the victim repeatedly tried to end communicating with you and your response was turning to use new accounts that you had set up to get around the blocking of you. Your persistence with the first victim was a matter elevating the gravity of your offending.
53 You also used troubling methods to keep in contact. That is, as I have said, the use of new accounts; the lying about your age, that is, that you yourself were a teenager; the use of, in real life, the teddy bear gift to manipulate and ingratiate. All these factors reveal your determination to get sexual gratification by exploiting the children or the child victims.
54 You also used manipulating language when the child did not communicate, or stopped communicating, by saying any absence or break in communications was hurtful to you.
55 Also of importance in assessing your moral culpability, is the fact that you made online enquiries of the Victoria Legal Aid website as to the legality of sexual contact with children at various ages. You also regularly said to a child that you knew you should not be in communications with them, and things such as, you would try not to be naughty.
56 You, of course, as an intelligent adult, a married man with children at about the age of your victims, knew full well what you were doing was wrong, perverse and harmful to the victims. You nonetheless persisted and elevated your conduct over a long period of time with respect to the first victim.
57 While your counsel argued that in your grooming offending, other than the watching of the victim at the park, and on the school bus, there was no attempt to meet up with a victim.
58 This in my view, misses the point of the grooming charge. The grooming charge is to use a carriage service to groom with sexual contact or that is grooming online. That is the nature, or element, or the point of the offence.
59 Other offending may arise if contact occurs. It is not a mitigatory factor that you did not commit other offences. I say all that mindful that you did commit another offence with the first victim who you did watch in real life and who you stalked for a period of many years.
60 Your counsel contended that your offending was not predatory. That is a submission that I do not accept. Your offending, or the offending, was by its nature an offence that is committed, which is fundamentally involving predatory behaviour. The facts and circumstances that establish your criminal conduct in Charges 1 and 2, is to my eyes plainly, and disturbingly, predatory. Conduct in the other charges are less serious or long-lasting conduct but at their essence they are examples of predatory behaviour.
61 Thus, your moral culpability in my eyes is very high and, together with gravity of the crimes as I have outlined, leads to the inevitable outcome that these charges, especially Charge 1 and 2 and 4, are serious examples of those crimes which have maximum terms of 10 and 15 years. And there has been a deliberate increase by the Commonwealth Parliament as to the maximum terms in reasonably recent times.
62 In addition to the gravity of what you did, I must also factor in your personal circumstances, that is, who you are, why you did what you did, if that can be explained and what your future holds.
63 Much of your personal history was set out in the psychological report of
Mr Cummins. You are now 57. You met your now wife in your mid-20s. She stands by you, despite what she has come to learn in recent times of your crimes. You have two now adult children. Your wife has run a successful hairdressing salon for many years. You assist in the administration of that business.
64 Your schooling was straightforward. You moved into some clerical work in a bank before a lengthy period working with your father in his Manchester business. This was problematic. You reported that your father was critical of you, something that has left a mark on you.
65 You moved into work in the automotive industry. You recently resigned once you knew you were going to be incarcerated. Overall, your work history is solid and to your credit.
66 You have no prior convictions, a matter not to be ignored. Though for this type of offending the authorities make clear that prior good character is not to be overemphasised and carries perhaps less weight than it might in other offending.
67 It seems sometime after your arrest your lawyers referred you to Mr Cummins, the psychologist. You also had a mental health plan referral from your general practitioner. You have had that in the past. So you have attended treatment sessions with Mr Cummins regularly for the past 16 months or so.
68 It is notable that despite your admissions in the record of interview and your acknowledgment of your offending in your treatment, you nonetheless maintained a plea of not guilty right up to literally the eve of your trial in the County Court.
69 Mr Cummins provided a report of 22 April 2024 and gave evidence at your plea. Some emphasis was put on your upbringing. Your parents separated when you were four. You were then raised by your father and a stepmother. You had regular contact with your mother and remain to this day connected to her. I received a testimonial or letter from her, providing support for you. But you had limited contact with your older siblings and that remains more or less the situation to this day. You have other half-siblings.
70 You reported to Mr Cummins that you felt you could never meet your father's high expectations and that you had lowered self-esteem as a consequence. You are a private, and you say, introverted man. Your wife in her evidence gave support for those propositions.
71 You have been treated with medication for depression for a number of years. Mr Cummins considered that you had mild depression and you were particularly anxious. Your counsel emphasised that you felt isolated, bored and without a satisfactory sex life.
72 You have no issues with alcohol or drugs. It seems you did have a gambling problem some years ago which you ultimately recognised and stopped. You indicated to Mr Cummins that you were proud of your capacity to simply stop the gambling addiction.
73 On your report to Mr Cummins, he formed the view that you were addicted to gaming and to social media platforms such as those you used to commit these crimes with children. His view was you were bored, frustrated and you utilised the internet for sexualised fantasies.
74 Mr Cummins then used the well-known psychological tools to gather your level of future risk. He noted that you were at level 3 average risk with respect to the Static 99 revised testing. This testing has five levels, from one which is very low risk to the highest, which is well above average risk. You are in the middle at average risk.
75 That said, in Mr Cummins' clinical view you were a low risk. You also considered the testing tool or utilised the testing tool RSVP. And it was noted that in terms of the sexual violence history domain there was as he said – or chronicity, diversity, escalation, breach of trust and abuse of power. These are all concerning aspects. It seems that you have some developing insight and have expressed feelings of shame and regret as to how your circumstances have led you to facing a period of time in gaol.
76 You recognise that participating in a sex offenders' program and having ongoing psychological treatment are appropriate measures for you. It seems as part of your treatment you have now acknowledged the dreadful impact of your crimes, especially on the victim of Charges 1 and 2.
77 Overall, it seems to me your prospects of reform are solid, providing you undergo the offence specific treatment that can be provided, in fact, can be mandated.
78 Your mental health is something that I have taken into account. But as the Court of Appeal held in the matter of Meyers, depression is an all too familiar problem for many in the prison population and it would not ordinarily attract much by way of mitigatory weight.[1] I do not ignore the fact that you have had depression before the offending, were medicated and treated by your general practitioner and that has been identified by an experienced medico or your experienced treating psychologist, Mr Cummins.
[1]DPP v Meyers [2014] VSCA 314, [60]-[63].
79 But whatever personal matters, such as your mental health and your prospects of rehabilitation, these are matters that must yield to the primary sentencing consideration as set out in section 16A of the Commonwealth Crimes Act and
section 5 of the Sentencing Act. The most important sentencing purposes are deterrents to others who may be tempted to exploit the ease and the vulnerability of children who use the internet and social media platforms to communicate in the hope that they are only communicating with
age-appropriate friends and acquaintances.
80 I have not overlooked, in my analysis of all relevant matters, the evidence in writing and orally from your wife. Her insights were of assistance and her ongoing support of significance with respect to your reform after release from gaol.
81 I have taken into account the testimonials from friends and family, that is your mother and appreciate or they in their letters appreciate and express your better qualities and they express their shock discovering your secret of sex offending over the past period of five years or so.
82 As to the submissions of counsel, the prosecution urge that I impose a head sentence and a non-parole period for both the State and Commonwealth sentences. The prosecution referred to the purposes set out in the Commonwealth and State legislation, as well as other like cases.
83 Of importance was the well accepted principle that ordinarily imprisonment is imposed for these child sex offences. It is recognised that because of the need for general deterrence being such an important matter, especially in light of the ease of access to children which is afforded to predators like you by the internet, these offences are difficult to detect and thus, those who embark in such appalling sexual exploitation of children must understand the stern punishment in the form of gaol sentences await them if they embark upon this conduct.
84 Further, the international reach of the internet which was part of your offending behaviour adds to the need for denunciation, punishment and deterrence within the sentences imposed.
85 The impact on the victim and her mother is substantial and there is a presumption of harm with respect to all these offences.
86 The prosecution emphasise the gravity of your crimes, especially with respect to the first victim.
87 Your counsel submitted that a sentence that allowed for recognisance release was just and appropriate. Given the need for exceptional circumstances to be established it was acknowledged that immediate release under a
recognisance release was not practically open.
88 Whatever the final submission on this, it is quite clear to me that there are no exceptional circumstances. There is no basis for recognisance release to allow immediate release in your case. I could not find anything that would get to a standard of it being an exceptional circumstance.
89 The sentence that I indicated in my view was a merciful one, especially in light of other cases and the gravity and moral culpability in the other matters that I have referred to.
90 Here you have pleaded guilty, but it is not an early plea. I need to be clear that you are not punished for maintaining a plea of not guilty to the very last moment. Rather, the value of your plea is measured such that those who plead guilty early are afforded the greatest benefit. The benefit to you remains but the potential full value of an early plea evaporated as the trial approached.
91 The utilitarian benefit for reducing the pressure on the criminal trial list necessarily is not significant here, as all the preparation was well in place for a trial that was about to begin.
92 The Commonwealth legislation provides for a presumption of cumulation. There will be appropriate orders for cumulation taking into account especially the overlap in Charges 1 and 2. I have been cautious to ensure that you are doubly punished for the same conduct with respect to Charges 1 and 2.
93 You will be declared a serious offender. There are consequential orders that relate to the Sex Offenders Registration Act. What I require is that when you are released on a recognisance release order that you do the Sex Offenders' Program under the supervision of Corrections officers.
94 As I indicated to the prosecutor at the outset of the sentencing hearing today, I will need assistance to achieve in terms that are permitted by the Commonwealth sentencing legislation, the overall effect of the sentence which I will just move to now.
95 What I intend to achieve is that for Charge 1 you are sentenced to 18 months' imprisonment. For Charge 2, you are sentenced to two years' imprisonment. For Charge 3, you are sentenced to six months' imprisonment and for
Charge 4, you are sentenced to 12 months' imprisonment.
96 Six months of Charge 1, one month of Charge 3 and five months of Charge 4 will be cumulative upon each other and upon the base charge, Charge 2, which is a Commonwealth offence. That gives 36 months, or three years, and I will order that you be placed on a recognisance release with release after serving 20 months of the sentence of three years.
97 The terms of the recognisance release are the following, that I order the release of you under paragraph 20(1)(b) of the Crimes Act, after serving 20 months of the term of imprisonment.
98 Upon your giving security by recognisance in the sum of $2,000 to comply with the conditions that you be of good behaviour for a period of two years, that you be subject to the supervision of a probation officer, being
Community Corrections Services and Sex Offender Management for a period of two years.
99 You are to obey all reasonable directions of that officer. You are not to travel interstate or overseas without written permission from them and you are to undertake such treatment and rehabilitation programs that the probation officer or the Community Corrections Service reasonably direct you to do.
100 There are other conditions. Once you are released you are to report – I think it is to the Ringwood Community Corrections Centre. The address will be provided. You have got to do that within two clear working days. You are to report and receive visits from Community Corrections.
101 You are to notify them of any change of address or employment. You are to attend for assessment and to assess suitable treatment for sex offender programs or programs to reduce reoffending as directed by the
Deputy Commissioner of Community Correctional Services and
Sex Offender Management or his or her nominee.
102 Those are the orders that I make. So, Ms Ambesi, how do I achieve – well, can I start with an easier task? Is the recognisance release in order?
103 MS AMBESI: It is, Your Honour.
104 HIS HONOUR: Thank you. If you can draft something that I can sign and send it to my staff by email that would work, I think.
105 MS AMBESI: I can do that, Your Honour. In terms of the cumulation order and commencement date.
106 HIS HONOUR: Yes. Thanks.
107 MS AMBESI: If I may have about 10 minutes to check this report?
108 HIS HONOUR: Yes, of course. Take whatever time.
109 MS AMBESI: Thank you, Your Honour.
110 HIS HONOUR: Thank you. All right. Mr Byl, you just wait online while we get the confoundedly diabolically different Commonwealth sentencing orders in place, but you know what the effect of this is. I thank counsel for their assistance. Mr Kounnas has had to head away. Ms Adamo, if you could just remain for a little longer, I'll come back in 10 minutes. Anyone else that wishes to head away, there is just going to be formalities and I thank them for their dignity that has been shown.
111 (Short adjournment.)
112 MS AMBESI: Thank you for that time, Your Honour.
113 HIS HONOUR: Yes. Thank you, Ms Ambesi.
114 MS AMBESI: In terms of structuring the sentence, I have discussed this with my learned friend and essentially because two different sentences need to be imposed, one in relation to the State offence and one in relation to the Commonwealth offence - - -
115 HIS HONOUR: Yes.
116 MS AMBESI: The easiest way to do this is to declare a total effective sentence on the State charge and a total effective sentence on the Commonwealth charge.
117 HIS HONOUR: Yes.
118 MS AMBESI: For Charge 1, the State charge, if that commences immediately then the sentence on Charge 2, the first Commonwealth charge - - -
119 HIS HONOUR: Yes.
120 MS AMBESI: Can be ordered to commence six months after the commencement of the sentence on Charge 1.
121 HIS HONOUR: So, what do I have to say, the date, or just six months after?
122 MS AMBESI: It can just be expressed as commencing six months after.
123 HIS HONOUR: All right, so Charge 1, immediate.
124 MS AMBESI: Yes.
125 HIS HONOUR: Charge 2, six months later. Yes.
126 MS AMBESI: Charge 3, can be expressed to commence 19 months after the commencement of the sentence from Charge 2.
127 HIS HONOUR: After Charge 2, yes.
128 MS AMBESI: And Charge 4 can be expressed as commencing 18 months after the commencement of the sentence on Charge 2.
129 HIS HONOUR: All right and the – yes, go on.
130 MS AMBESI: Which would mean that the State total effective sentence would be 18 months.
131 HIS HONOUR: Yes.
132 MS AMBESI: And I understand Your Honour to not be imposing a non-parole period - - -
133 HIS HONOUR: No.
134 MS AMBESI: - - - in respect of that charge.
135 HIS HONOUR: No.
136 MS AMBESI: And the Commonwealth total effective sentence would be
30 months.
137 HIS HONOUR: Yes.
138 MS AMBESI: With release after serving 20 months.
139 HIS HONOUR: Yes.
140 MS AMBESI: Global total effective sentence is 36 months.
141 HIS HONOUR: Yes. Thank you. That's exactly what I want.
142 MS AMBESI: Thank you, Your Honour and if I may also just request that
Your Honour explain to Mr Byl, the consequences of breaching a recognisance release order.
143 HIS HONOUR: All right. Yes.
144 MS AMBESI: Thank you
145 HIS HONOUR: Which is he returns back to me for a breach and I re-sentence him.
146 MS AMBESI: That's correct, Your Honour.
147 HIS HONOUR: Thank you.
148 MS AMBESI: And essentially that the suspended period under the recognisance release order is liable to be imposed.
149 HIS HONOUR: Yes.
150 MS AMBESI: Thank you.
151 HIS HONOUR: Yes. That's 24 months. All right or the other period of time
the 16. Further, he's done 84 days in custody.
152 MS AMBESI: That's correct, Your Honour.
153 HIS HONOUR: He is required to register under the
Sex Offenders Registration Act.
154 MS AMBESI: Yes, for a reporting period of life, Your Honour.
155 HIS HONOUR: For life, and is he a serious sexual offender under this - - -
156 MS AMBESI: He's not.
157 HIS HONOUR: He's not. Any reference to that was in error. It didn't change anything. All right. So, the order of the court, Mr Byl, is that Charge 1, to commence immediately. You are sentenced to 18 months. Charge 2, the sentence that I impose for two years, starts six months after the commencement of the sentence on Charge 1, or starts six months from today.
158 Charge 3, starts 19 months after the commencement date of Charge 2
and for Charge 4, the sentence starts 18 months after the commencement of Charge 2.
159 That gives a total Commonwealth sentence, effective sentence of 30 months. Total State sentence of 18 months and the overall sentence by way of timing is as I said, the total effective sentence for you is 36 months, with respect to the Commonwealth offences and the 30 months, the recognisance release is after 10 months – start again, after 20 months, I am so sorry, 20 months. So, you will be kept in custody for 20 months and then be subject to release under the conditions that I have already outlined.
160 To be clear, you are to be of good behaviour for 24 months, that this in a recognisance security of $2,000. The conditions are most primarily that you undertake treatment required of you by the Office of Corrections. That was expressed as being you must attend for assessment and if suitable, treatment for sex offender program to reduce your reoffending as directed by the
Office of Corrections.
161 There are other conditions. You have got to obey all reasonable directions of the Office of Corrections. You are not to travel interstate or overseas without getting written permission.
162 You are to report to the Ringwood Community Corrections Centre within two clear working days of release from custody.
163 You are to notify the Office of Corrections if you change your address or employment within two clear working days after the change.
164 There are other conditions relating to reporting and receiving visits from the Office of Corrections and obeying all reasonable directions of them.
165 What is required is that this order being issued you were charged with the offences that is three charges of using a carriage service to groom a child under the age of 16.
166 Court has sentenced you to a term of imprisonment under the Commonwealth offences of 30 months and has ordered the you be released after 20 months with conditions that I have outlined. I will sign that order.
167 What is important is that you, Mr Byl, have had explained to you the purposes and effect of the order, the consequence that may follow if you fail and how the order is discharged. You will be asked if you agree to be bound by this order and ultimately you will be given a copy of it.
168 So let me just explain that if you do not be of good behaviour or you don't do the sex offenders program and so on, then you will lose this recognisance release. You will come back before me to be re-sentenced and likely do the remaining amount of the recognisance release, which in your case currently is 10 months.
169 So, Mr Byl, do you understand the purposes and the effect of the recognisance release?
170 OFFENDER: Ah, yes, I do, Your Honour.
171 HIS HONOUR: Do you agree to be bound by it?
172 OFFENDER: Ah, yes, I do.
173 HIS HONOUR: All right. Do you agree that ultimately – we can't do it because of you being online – you will be given a copy of the order? Do you understand?
174 OFFENDER: I understand.
175 HIS HONOUR: Yes. All right. What I will do is, in the place where there are signatures required, I will indicate you gave your oral consent to the order in the virtual hearing and my associate or I will sign that part of the recognisance release.
176 Mr Byl, I have broken this up in ways, and I am sorry if it confuses. But I have imposed a sentence of imprisonment. What has been reckoned is that you have done 84 days in custody already. This figure or number of days having been reckoned, I will declare it is part of the sentence that I have just imposed and I ensure the declaration is entered into the records of the court. So the prison authorities will let you - no doubt you have already done 84 days of the sentence I have just imposed.
177 These offences also engage the Sex Offenders Registration Act. As a consequence of the offences that you committed you must register on the
Sex Offenders Register and remain subject to it for a period of life. None of those things have a discretion about it. They are mandatory. I have no say in it, but that is what has to happen.
178 Now, you will be provided a document that sets out all that's required of you to register and remain compliant with your Sex Offenders registration. It is a document of some length but it is necessary that you and your solicitors go over it. Because the consequences of not abiding by all the requirements under the Sex Offenders Registration Act, those consequences are serious.
179 It is a criminal offence and you will be charged and ultimately punished probably before a magistrate. But if you do so within the period of the recognisance release that would trigger a failure to abide by the recognisance release, which would come back before me, irrespective of what the magistrate did.
180 The requirements of you under the Sex Offenders Registration are considerable. You must, for instance, identify or provide information identifying much of the circumstances of your life, address, car, car registration, when you change your car, any internet identity that you have or change, any email address, any such thing. It goes on.
181 You need to understand with your lawyers that the requirements of you are very significant. You will be monitored by a police officer and you have to comply with what is required of you. Do you understand all that? Do you understand all that?
182 OFFENDER: Yes. I do, Your Honour.
183 HIS HONOUR: All right. What is required by the legislation is I have to sign that and you have to sign that. We will give the document to your solicitor and we will take it that you accept that that document will be given to your solicitor and then provided to you, so you give your consent to receiving the document. Do you understand?
184 OFFENDER: I do.
185 HIS HONOUR: Thank you. With that, with those provisions signed and the like I will be sure that what needs to be sent to the Chief Commissioner of Police is sent to the Chief Commissioner of Police regarding the requirement of registration for Mr Byl.
186 Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of four years with a non-parole period of
two years and nine months in effect.
187 Is there anything else?
188 MS AMBESI: No, Your Honour.
189 HIS HONOUR: All right. Well, there will be documents signed and other aspects indicating his consent in due course. They will be forwarded to you and I will sign them in due course. There is no need to hang around for those. They can be emailed to you. Thank you very much for your assistance,
Ms Ambesi. Fifteen years of doing this has made me no better, perhaps worse with this legislation.
190 MS AMBESI: You're welcome, Your Honour.
191 HIS HONOUR: I'm grateful to someone who can understand it. Thank you.
Upon reconvening on 25 July 2024:
HIS HONOUR:
1The sentencing order is that for Charges 2,3 and 4 I order that pursuant to s 20(1)(b) of the Crimes Act (Cth) that you be released after serving 14 months' imprisonment and upon you giving security in a recognisance at $2000, the Recognisance Release will be amended. I will resign it, so to you to replace references to 20 months with 14 months. Those changes occur on the Recognisance Release at pp 1 and 3.
2That brings about the sentence that I intended. I should say, speaking now to the lawyers, that I think your instructor has made it clear that I could correct technical errors under s 19AHA(3) of the Crimes Act. That is what I wish to do.
3MS TATAS: Thank Your Honour.
4HIS HONOUR: Is there anything further required.
5MS TATAS: No, Your Honour.
6MS ADDAMO: No, Your Honour.
7HIS HONOUR: All right. If you wish to have, I do not see that you would, but my staff can probably arrange if you want anything said to him, your client, Mr Byl, at this point, but otherwise I will leave the hearing.
8Thank you very much for speedily fixing up errors or slips that I made. Thank you.
9MS TATAS: If the court pleases.
10MS ADDAMO: If the court pleases.
‑ ‑ ‑
0