Director of Public Prosecutions v Byrne

[2021] VCC 18

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-18-00618

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN BYRNE

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2021
DATE OF SENTENCE:	21 January 2021
CASE MAY BE CITED AS:	DPP v Byrne
MEDIUM NEUTRAL CITATION:	[2021] VCC 18

REASONS FOR SENTENCE

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Subject:Criminal law

Catchwords:                   Contravention of CCO

Legislation Cited:           Sentencing Act 1991 (Vic)

Sentence:Adjourned undertaking (12 months, to complete men's behaviour change program)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Katotas	Office of Public Prosecutions
The Accused was not represented

HER HONOUR: 

1Stephen Byrne, you are here today in contravention of a 20-month community corrections order which had been imposed by me upon you on 27 June 2018 in relation to charges of aggravated burglary and criminal damage, which were committed on 9 December 2017 in the context of a relationship breakdown and in the context of what I would describe as family violence.

2Your breach of the order that I made is admitted by you. 

3At the time of your plea in June 2018, you had no prior convictions and I am certainly told there has been nothing since.  You have reconciled back into that relationship and there is a new child.

4I have had recourse to the reasons for my original sentence and refreshed my memory of the matters that I took into account, many of which remain relevant today.  I am certainly satisfied that the horrific events of December 2017 were a one-off.  I certainly want to ensure that that remains the case.

5The legislation in the Sentencing Act, specifically s.83AS(2), requires me to consider your level of compliance with the order that I made.

6Just so that you know, on a finding of guilty for contravention of a community corrections order, a court has power to vary the order, confirm the order originally made, cancel the order and resentence for the original offences, or cancel the order and make no further order.  There are some perhaps limits on that in circumstances where the order has now expired, which is your case. 

7Section 83AS of the Sentencing Act also provides that a judge who is dealing with the contravention of a corrections order can deal with the offender for the original offences with respect to which the order was made, as if the court had just found that person guilty of the offence.  In other words, I can resentence entirely afresh and you would be resentenced for the original offences plus the contravention.

8However, in your case, the Department of Justice and Community Safety and the Office of Public Prosecutions seek that I simply confirm the order.

9I have had recourse to what is described as the contravention package. 
In that contravention, I have got access to the "Contravention Of Community Corrections Order By Conditions" report dated 29 December 2020 and I am told that you have had the chance to read that report.

10What that tells me is that you were originally assessed as being at low risk of reoffending.  It tells me your compliance with what was a 28-month community corrections order is described as satisfactory, with you attending for supervision on a fortnightly basis.  I am told that during supervision appointments you made significant progress in identifying factors that contributed to your offending behaviour.  I am told you displayed remorse for your actions, that you continue to make positive choices in regard to your emotional regulation and limiting external factors that had initially contributed to your offending, primarily by reducing your use of alcohol.  I am told you displayed an understanding of high risk situations that could lead to potential further offending, such as the stress associated with family commitments.

11There was said to be minor non-compliance with community work and, let us face it, last year was particularly difficult for a range of factors, primarily COVID-19, in otherwise being able to complete aspects of the order that I imposed. 

12You completed the treatment that I had imposed for drugs and alcohol.  You completed 85 per cent of the community work that I imposed and the area that perhaps remains outstanding, which I do not hold you entirely responsible for, is my very genuine wish that you complete the men's behavioural change program.

13With all of that in mind, and bearing also in mind the heavy load a 28-month order represents in something hanging over an offender's head, you have done exceptionally well.  That is what I am taking into account.  I am of the view that your breach or your contravention is relatively low-level.

14So I am going to take the course that I am invited to undertake and simply confirm the corrections order.  There is nothing more that you need to do in relation to that. 

15In relation to the charge of contravening it, I do find the breach proven; you have admitted that.  I confirm the order originally made.

16In relation to the contravention charge, I am going to ask you to promise to do that men's behavioural change program.  That means you will sign what is called an adjourned undertaking.  That will be in place for 12 months. 
I have only put it in place for 12 months because sometimes there are problems with completing the program and I simply want to give you enough time to complete it. 

17You will need to file with the court - you can do that at Latrobe Valley Court - some confirmation from the program that you have completed it and then you and I never have to see each other again.

18I will just check in and see if there is any comment from the Office of Corrections.

19CORRECTIONS OFFICER:  No comment, Your Honour.

20HER HONOUR:  All right.  Any issues from your end?

21MS KATOTAS:  No, Your Honour.

22HER HONOUR:  All right.  Well, a document is going to be generated.  I will get a copy of that, you will get a copy of that and we will talk that through just to make sure that you understand what I am asking you to do.  Any questions for me at this stage?

23OFFENDER:  No.

24HER HONOUR:  I think it is perhaps a further indication of your overall positive path that you decided to come down here yourself today from Traralgon and I am very pleased for you, Mr Byrne, that things have moved on in such a positive way.  I am pretty sure you are pretty pleased for yourself and I have got no doubt so has your partner and the children.

25I obviously cannot give you legal advice in my role but I want to talk through that document with you to make sure that you are only signing something that you are happy to sign.  Did you want a copy too, Ms Katotas?

26MS KATOTAS:  No, Your Honour.

27HER HONOUR:  So you see at the top of the document, it is called an adjourned undertaking.  Effectively, it is otherwise called a good behaviour bond.  So I have convicted you of the charge of contravening the corrections order and I would like to place you on an undertaking.  I do not have to, this is just my intention.  The undertaking, if you sign it, starts today and, as I have said, goes for 12 months, so it goes to January of next year.  You have to be good during the period of the promise, which I am pretty sure you will manage, and you must attend court if called upon to do so.  You will not be called upon to do so unless you have broken the promise.

28The special condition is that you must complete the men's behaviour change program.  I will add to that a requirement that you provide to the County Court confirmation that that program has been completed, and as I said, you can do that at the Latrobe Valley court.  So that is what I am asking you to do. 
So have a look at that and ask me any questions that you might have.

29OFFENDER:  Um, I'm happy for that.

30HER HONOUR:  All right.  So I will just get that amended in the way that I have said.  What is your current address?

31OFFENDER:  I've got a change of address.

32HER HONOUR:  Yes.

33OFFENDER:  It's [address given].

34HER HONOUR:  All right, so all that has been added to the document that you have already seen is that you are to provide to the County Court of Victoria confirmation of completion of the men's behaviour change program. 

35So I have signed it.  Once you have signed it, we are both committed.  You more so than me.  And I will have you given a copy of that document as well as the - and it will be emailed perhaps to your instructor.

36If for whatever reason you end up having any problems or difficulties, just come back in some way, shape or form, all right?  But other than that, if you stay out of trouble, which, as I said, I think you are going to manage, and you complete that program, we are done.

37OFFENDER:  Okay, thanks very much.

38HER HONOUR:  All right.  So all the best, thank you very much.  Ms Katotas, thank you very much for your assistance thus far, although I believe I will be seeing you again shortly.  So thank you.

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