Director of Public Prosecutions v Byrne

[2020] VCC 1621

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00843
CR 16-01211

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEIL BYRNE

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2020
DATE OF SENTENCE:	7 October 2020
CASE MAY BE CITED AS:	DPP v Byrne
MEDIUM NEUTRAL CITATION:	[2020] VCC 1621

EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Gahan
For the Accused	Mr A. Norris

HIS HONOUR: 

1Neil James Byrne, you have pleaded guilty to one charge of armed robbery which carries with it a maximum penalty of 25 years' imprisonment. 

2In the early afternoon of Easter Sunday, 12 April 2020, the complainant Lani Vickers was working alone as a sales assistance at a Club X store on Scoresby Road, Bayswater.  Due to it being Easter Sunday, it was one of the few shops open, and so, it fell to her to be your victim in that armed robbery. 

3I have previously sentenced you on 11 August 2016 on a charge of attempted armed robbery which carries with it a lesser maximum penalty.  The sentence that I then imposed was one of 18 months' imprisonment together with a community corrections order that had as further penalty 200 hours of community service work to be performed, but was otherwise a therapeutic order.  Though that of course also carries with it some aspect of punishment, in particular in relation to the supervision that was part of that community corrections order.

4That attempted armed robbery occurred on 18 April 2016.  Four years later, on 12 April 2020, you committed this armed robbery.  It might have been thought that having been sentenced on 11 August 2016 to 18 months' imprisonment of which you had served approximately four months and been under a two-year community corrections order upon your release on 18 October 2017 that that period of incarceration together with the requirements of that order would have brought home to you the need for you not to further offend. 

5You eventually completed all 200 hours of the work requirement under that community corrections order.  I would have expected as a matter of course that compliance after 18 months' imprisonment with those conditions would have drawn your attention to the potential consequences of repeat offending. 

6Since I imposed that sentence, you have committed further offending and on 15 July 2019 you were sentenced in the Magistrates' Court to a further 12 months' community corrections order on charges of trafficking and cultivating cannabis. 

7On 4 March this year, you were charged with breaching the community corrections order that I had imposed and you were bailed on that charge.  The following month and 37 days later you committed this armed robbery.  Again, one might have thought that your appearance before the Magistrates' Court and being placed upon a further community corrections order which was current at the time of the armed robbery, upon bail conditions for breach of the community corrections order in relation to the attempted armed robbery which were current at the time of this armed robbery, you would again have been reminded of the potential consequences of further serious offending.

8But in addition to that other Magistrates' Court appearance, you appeared on 18 March this year again in the Magistrates' Court on three charges of theft, four charges of obtaining property by deception and one charge of attempt to commit an indictable offence and you were fined $1000.  Twenty-five days later, you committed this armed robbery.

9I recite that brief history because it goes to oral submissions made during Mr Norris' very thorough and helpful plea on your behalf, two aspects of which I must deal with in detail.  First, the suggestion that at the time of this armed robbery, you were labouring under difficulties which I will come to arising from your mental health such that it was suggested you could not properly and calmly reason and thus at the time of this armed robbery your moral culpability will be reduced as well as the need for specific deterrence by enlivening various limbs of Verdins. 

10So far as I am concerned, nothing further than the truth can be imagined.  The background that I have already outlined of your various assorted court appearances, dealings with the criminal justice system is but the commencement of the analysis which drives me to conclude that you well knew precisely what you were doing during the course of events leading up to this armed robbery and during the course of it.  It had nothing to do with any mental deficiencies that you have.  Rather, it was you making decisions that suited you at the time. 

11Before I come in more detail to the facts of this armed robbery, it is useful to return to my sentencing reasons in relation to the attempted armed robbery and the circumstances surrounding that attempted armed robbery.  In paragraphs 2 and following, I describe that offending:  

'In the mid-evening at about 8.15 on 18 April this year, you went to an Amcal pharmacy in Nunawading.  A Sheila Joy was the pharmacist on duty and she was assisted by another female, Jessie Quoc, who worked at the front counter. You approached the pharmacist and asked for fentanyl patches.  She asked you what strength you were after and you responded that you were not sure, providing an excuse that you were waiting for your doctor to provide you with a script. 

She explained to you that you should return once you had the script to ensure that you had the correct strength.  You then left the pharmacy.  Approximately one hour later, you returned.  You then spoke to the front counter assistant, Jessie Quoc, and explained that you were waiting for your doctor to fax the script through.  You were told to take a seat and wait.  She turned her back to you and you grabbed her left arm and began making demands of her, using words to the effect, "Give me the drugs."  You chased her through the store and behind the dispensary.  She called out to the pharmacist, Ms Joy, who ran to the front of the store behind the dispensary. 

As she fled you then grabbed Ms Joy and demanded patches from her.  You had a metal bar and held it against her throat and kept repeating that you wanted patches.  This metal bar was in fact a sizeable jimmy bar, approximately 30 to 40 cm in length.

She managed to get from the shop whilst you were still holding on to her and screamed for help.  CCTV footage shows that she escaped through the front door but within a couple of metres you had grabbed her again and dragged her back into the store, demanding that you should receive the patches.

Fortunately Christopher Genley  at the 7-Eleven store next door heard Ms Joy's screams.  He ran to her assistance.  He saw that you were holding on to her and heard you yelling, "Give me the patches. Give me the patches." Despite observing that you were armed with the jimmy bar, he went to you.  He grabbed you by the head and in a headlock, pinned you down to the floor. 

Whilst this latter part of the event was occurring, Ms Quoc was on the phone calling the police who attended shortly and arrested you.  You were not interviewed because of your intoxication.  You had apparently been living out of a car which was located by the police a short distance from the pharmacy and carried with you a satchel bag.’ 

12At paragraph 12, I deal with your previous criminal history which I will not repeat.  I note at paragraph 16 that the only stability in your life has been your family who remain staunchly supportive of you.  Others would not have done so.  You are lucky to have mother and father who still, despite this further offending, support you.

13You wrote a note addressed to me which I quote in part at paragraph 20.  In paragraph 25 I continued to state:

'Without your determination to change your lifestyle and rid yourself from any use of drugs and alcohol, your prognosis is poor.  If you stand by what you wrote in that note in 2013, and you stand by what you have said to your psychologist as to your intentions, then the future is not bleak.  If you turn to drugs and alcohol, I have no doubt that your life will spiral again out of control and you will reoffend.’

14At paragraph 27 I continued:

'I must consider your prospects of rehabilitation and although I am guarded about them I am prepared to act on the basis that you intend to do as you have said you will.  It is perhaps the ghosts of your grandfathers which might prompt you further in that resolve.’ 

15And so, I imposed the sentences that I did, of 18 months' imprisonment and a two-year therapeutic community corrections order with the 200 hours of unpaid community service work.  A sentence which before the plea and a concession by the prosecution I had not even considered, but which I then imposed given the materials placed before me and the Crown concession, and an appropriate one at the time, that a combined sentence was open to be imposed.

16That sentence was a lenient one.  It was designed not only to punish you but also to help you.  You have squandered that leniency.  You have chosen to return to your old lifestyle, using drugs, despite the assistance provided by your parents and your cousin giving you work.  You thumbed your nose at them all once again. 

17You have pleaded guilty through your counsel to a charge of breach of the community service order and as I indicated to Mr Norris, I do not intend to do other than find the charge proven and take no further action.  And so, in that regard you may consider that in relation to that offending again, I have extended some leniency to you.

18But things have changed since I sentenced you in August 2016 in the ways that I have already addressed and by your new offending which I now return to.  Again, your victim was a woman.  Again, the target of your attack was a soft target.  Again, you armed yourself, not with a jemmy on this occasion but with a hammer.  Again, there was no other member of the public inside the pharmacy as inside this store.  Again, you used the weapon that you had with you to threaten your victim.  Again, what drove you was your addiction to drugs.

19On this occasion, you had an accomplice who was driving your Commodore station wagon.  You exited the front passenger side of that vehicle, then entered the Club-X door via the rear door.  After you exited the vehicle, the driver reversed and turned the vehicle to face towards Scoresby Road.  Without doubt, for the purpose of affecting your escape from this armed robbery.

20You came in with your face partially hidden by the hood of your hoodie drawn over your head.  You approached the service counter for the store.  A young woman, Ms Vickers, was behind it.  You pulled a hammer out from the back of your jumper and held it in your right hand above your head.  You told her to open the cash register.  She pressed the duress alarm and complied with your demand.  You reached into the cash register and stole $385 in assorted denominations and demanded a bag to put the money in.  It is fortunate for her that she sensibly complied with your demands.  As you were walking away towards the rear exit door that you had earlier come in by, you said to her, 'The door better be open.' 

21Does any of this suggest a lack of thought?  A lack of understanding?  A lack of deliberation?  Not at all.  It all speaks to you calmly going about your business as an armed robber, choosing a vulnerable target, threatening the only person in the store, a female, getting your money and on the way to leaving, making sure that your exit was not going to be blocked by her in some way locking rear door.  And off you went, getting in the car and leaving.

22I have watched the CCTV footage of this armed robbery.  It is typical of such armed robberies which are all too common.  You, a 43-year-old man, threatening your victim.  Having got your money, you then went to a drug dealer and purchased heroin. 

23Two days later, on 14 April 2020, you were arrested.  You were interviewed, and again, as with your previous offending of attempted armed robbery, you were confessional.  You told the police during your interview that you were driving in your vehicle and you felt sick from heroin withdrawal when you saw an associate and asked him to drive your motor vehicle. 

24You told the police that you were driving around, initially planning to borrow money but then you saw the Club-X store was open and observed the lights on, as most stores were closed due to it being Easter Sunday.  You changed your mind from borrowing money to stealing money with threatened force.  That was your choice.  You carried out your choice by taking the hammer from your car and entering the store. 

25You are remorseful and you have pleaded guilty at the earliest opportunity following your confessional record of interview.  Those are matters to your credit. 

26Your mother has again written a heartfelt letter on your behalf, dated 13 July 2020.  She opens with this.

'Well here we go again; I would like to wrap Neil up and transport him to a desert island where he was away from drugs, alcohol, and the ability to harm himself and others, but this is only a dream. Inherently Neil is a good person, though unfortunately someone who has made several poor choices during the course of his life. In an earlier letter, dated July the 29th 2016, I detailed some of the circumstances from his earlier life that  contributed to this.’

27In my previous sentencing reasons, I have detailed your personal history.  It is plain that from your early teens you have struggled with polysubstance addictions: alcohol, amphetamines, methylamphetamines, heroin.  It is plain that drugs have controlled your life. 

28Again, Mr Glenn Robertson who supported you after your release with a job is prepared to do so again.  And as I have said, your parents, your father, an aged man in poor health, your mother, also not in good health, supporting you. 

29I do not think, Mr Byrne, you understand how lucky you have been to have that support and to still have it.  But then, mothers and fathers typically do such things in support of their wayward children. 

30Also, during your interview, when asked why you committed the offence you replied, 'I'm a junkie … I was sick.'  You described yourself as a junkie.  It was submitted by Mr Norris that you were highly remorseful and take full responsibility for committing the offence.  I accept that.

31Before turning to the evidence of neuropsychologist Laura Scott and her report and oral evidence, it is important to note that you had a complete recollection of the events of this armed robbery.  You did take full responsibility for what you did.  You did not shirk in any way from taking that responsibility and that is all to your credit.

32Ms Scott sets out your history including your substance abuse and it is useful to me.  On p.3 in that regard:

‘Mr Byrne first consumed a full alcoholic drink at the age of 12 or 13. He reported daily alcohol consumption from the age of 27 onwards. He typically consumed 3 or 4 long necks of full strength beer (9-12 standard drinks) a day, and sometimes more. He reported falls when drunk and complained of tingling in his arms at night and in the morning, particularly during the first two weeks of withdrawal in custody. He reported he required Valium to assist with alcohol withdrawal on his current period in custody.

Mr Byrne first consumed Cannabis when he was 13. From then he had used it most days via joints and cones. He typically smoked 2 to 3 grams per day.

Mr Byrne first used Ecstasy when he was 17. He used it approximately twice per months from then until 5 years ago. He typically used one or two pills on an occasion of use.

Mr Byrne first used Speed (amphetamine) when he was 16. He was injecting it several times a month until the age of 35. He typically used 2g per month.

Mr Byrne was first exposed to Ice (methamphetamine) when he was 38. He initially used it on approximately a monthly basis, however a year ago his use escalated and he was using 3-4 points every 2 days.

Mr Byrne first used Heroin when he was 16. He progressed to regular use from the age of 17 onwards and had used it most days since. He typically used 2 to 3 points in a shot and had three or four shots per day.

Mr Byrne reported occasional use of benzodiazepines, particularly when trying to stop using other drugs.

Mr Byrne reported occasional use of opioid medications (such as Fentanyl, Morphine and Oxycodone). He reported a period lasting a few years in his mid 30s when he was using these drugs most days because they were easy to obtain. He denied recent regular use.

Mr Byrne reported occasional use of GHB, Ketamine, Cocaine and other hallucinogenic drugs.’

In terms of the offending, at p.4, it is described in these terms: 

‘By way of context, Mr Byrne reported he had been trying to cease drug use at the time and had been awake for 1 or 2 days. He recalled it was Easter and "everything was closed except the churches". He felt he was "on fire and wanted to put it out". He said his friend drove him around and he ultimately held up a Club X. He purchased drugs with the money. He mentioned "I had to fund habits for two people".’

Page 5, Ms Scott continued:

‘On reflection, Mr Byrne acknowledged "it's a terrible situation, my parents worked all their lives, I know it's not the way to go about things". He went on to say that "when you're withdrawing, your thinking goes out the window". When asked about the impact on the victim of the armed robbery, Mr Byrne stated "it must have been horrifying … it could impact the rest of her life … it's horrible to think you are responsible for hurting someone this way". He went on to acknowledge a feeling that he had "impacted everyone close to me in a negative way" and stated this made him feel depressed. He reflected it was difficult to think "that's all your existence has meant, just a negative vibe".’

You later on said that you were sick of the drug life. 

At page 8, in relation to cognition, behaviour and communication, Ms Scott writes:

'On interview, Mr Byrne denied any difficulties with cognitive functioning.  He denied any unusual behaviours and felt his range of emotions was equivalent to his peers.’ 

In terms of mood:

‘Mr Byrne stated he was feeling "pretty good" on the day of assessment and rated his mood as 4/10 (0 = lowest mood ever, 10 = best mood ever). Once "the drugs got out of my system" he began to feel much better. He had been participating in exercise and eating and sleeping at regular times which he felt had significantly improved his mood.’

33It is noted on a number of occasions during the course of the report by Ms Scott that you became increasingly irritated during the course of the appointment and at p.9:

‘complained that he would have no other time out of his cell that day due to the COVID-19 restrictions (“I get into a routine here … I was expecting to go and train…. I get an endorphin rush and it helps me to sleep”). However, he ultimately declined to reschedule to another day.’

It is to be borne in mind that the assessment took close on three and a half hours. 

34Page 12, in summarising the assessment, Ms Scott writes:

‘In summary, Mr Byrne presents with scattered impairments of mild-to-moderate severity in aspects of attention, working memory and executive functions. Processing speed is highly variable. There are some isolated scores in the extremely low range including on a task of attentional switching. Behaviourally, Mr Byrne presents as restless, inattentive and irritable. There are signs of impulsivity and perseveration. This neuropsychological profile is seen in the context of significant psychological distress.’

The impulsivity and perseveration are consistent with ADHD, she opines.

35In terms of the question posited at p.14 that, did the condition cause or contribute to the offending behaviour, she opines, ‘Mr Byrne’s cognitive impairments were likely contributors to the current offending.’[1] She continues on:

‘Regarding the armed robbery, Mr Byrne stated he was extremely fatigued and experiencing intense withdrawal symptoms from amphetamines on the day. Any existing impairments observed on the current assessment are likely to have been exacerbated by these factors. Mr Byrne reported that he became fixated on seeking money to purchase drugs to alleviate the discomfort of the withdrawal and fatigue state. This is an example of his tendency to revert to well-learned behaviours (e.g. theft to fund drug use) to cope with challenges. In a state of acute distress, Mr Byrne’s underlying tendencies toward irritability, frustration and behavioural dysregulation would have been exacerbated and may have predisposed him to more aggressive behaviour than he would demonstrate under normal circumstances.’

[1] Italics added for emphasis.

36Such impairments to your mental functioning, in my view, had absolutely nothing to do with your decision to commit this armed robbery.  Suggestions to the contrary were but that, suggestions made by Ms Scott.  There is nothing in the material that she has written or stated which in any way enlivens the principles of Verdins, making you any less morally culpable for this offending.  Nor is there any foundation with the implicit assertion that you are a less suitable vehicle for specific deterrence, general deterrence, just punishment and denunciation of your conduct. 

37Put differently, there is simply no nexus between your reduced cognitive capacity and your offending on this day.  You at various points made choices such as when you made the choice when you were being driven around, not to borrow the money but to rob instead. The choice of picking one of the few shops open that Easter Sunday afternoon.  The choice of getting out of the vehicle, picking up the hammer, going to that rear door and entering it.  The choice of going to the counter where that female employee stood and holding that hammer above your head in order to threaten her.  The choice of directing her to open the till and you taking the money.  The choice of you demanding a bag to put the money in, which she complied with.  The choice of you leaving and making sure by your comment that the door that you came by was still open.  The choice of then using the money to buy the heroin. 

38All were your choices.  All were similar choices that you had previously made during the course of the attempted armed robbery back in April 2016.  Choices made four years ago, choices made this day four years after that attempted armed robbery.

39It has also been suggested in some way because of your mental impairment that your period in custody will be more burdensome given your cognitive functioning and your lack of capacity to resist impulsive actions.  This of course is completely belied by the history you have given to Ms Scott which does not suggest that you have had any difficulty in your most recent period of imprisonment.  Quite the contrary.  You are in a routine.  Your frustration on the day of assessment was because your routine had been completely compromised by the length of the assessment.

40There is not a word that has been written or said by Ms Scott that evidences one instance of you not being able to cope with your current period of imprisonment.  Certainly, there is simply no basis for me to moderate the sentence I intend to impose upon you because of some additional burdensomeness to you vis-à-vis other prisoners not so affected by your mental health issues.  On the contrary, the opposite is the case.  There simply is no reason to moderate the sentence that I will otherwise impose. 

41To your credit as I have already said, you have pleaded guilty at the earliest opportunity.  You have done that in the context of being confessional and cooperative with police during your interview. I accept, as I have said on a number of occasions, that you are insightful and remorseful for this offending.  

42I have previously assessed your prospects of rehabilitation as poor.  I have no reason to change that assessment save that if you do what you did after your release from custody having spent 18 months in gaol and return to your drug use, your prospects of rehabilitation will fall to nil.  The choice again, Mr Byrne, is yours. 

43I take into account the fact of your pleas of guilty have meant that there has been no need for a committal hearing nor trial.  The utility of your pleas of guilty is therefore taken into account.  This is particularly of significance not only in terms of facilitating the administration of justice but by doing so during this time, during the course of this pandemic where all trials have stopped, hopefully to resume in the early new year. 

44I do take into account and moderate the sentence that I would otherwise impose given the COVID-19 restrictions on your privileges that have been curtailed during your period of imprisonment to today's date and for the foreseeable future.

45General deterrence is an important consideration. Deterring others from committing armed robberies on these soft targets. There is a need further for you to be deterred from further offending, particularly in circumstances where you have repeated the type of offending for which I have already sentenced you back in 2016. 

46There is a need for just punishment for this offending and denunciation of your disgraceful conduct. It is trite but must be said.  Workers, often who are working alone in stores, are entitled to go to work and feel safe.  Not to be threatened, not to be intimidated, not to be traumatised by persons such as yourself.

47This is the second time in a relatively short period of time when you have committed the offence of armed robbery. Earlier an attempt only foiled by the intervention by another male.   Protection of the community is a significant matter that I must take into account in sentencing you in the circumstances which I have described. 

48Taking all these matters into account, I sentence you for a charge of armed robbery to four years and six months' imprisonment.  I set a minimum non-parole period of three years. 

49I declare that but for your pleas of guilty I would have sentenced you to six years and set a minimum non‑parole period of four years.

50I declare that the pre-sentence detention is 175 days which will be administratively deducted from the head sentence and the minimum term.  

51In relation to the breach of the community corrections order, I find the charge proven and I take no further action. 

52I have made the disposal order as well, Mr Gahan, in relation to the items of clothing et cetera and the hammer.  

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