Director of Public Prosecutions v Byrne
[2020] VCC 100
•13 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01852
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN EDWARD BYRNE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 to 15 November and 18 November 2019 | |
DATE OF PLEA: | 29 January 2020 | |
DATE OF SENTENCE: | 13 February 2020 | |
CASE MAY BE CITED AS: | DPP v Byrne | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 100 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Convicted by jury of one charge of armed robbery – cowardly offence committed by offender and one co-offender against elderly man on mobility scooter – co-offender pleaded guilty and cooperated with prosecution of this offender – 40-year-old offender with significant criminal history, especially for offences of dishonesty, including armed robbery, attempted armed robbery, aggravated burglary, intentionally cause injury, assault with a weapon and other drug-related offences – long-term drug abuse – many other periods of imprisonment – childhood deprivation and abuse – Post-Traumatic Stress Disorder – mild acquired brain injury – apparent uncontrolled epilepsy – onerous period of custody due to being held in protection unit (but also in management unit due to misbehaviour in prison) – TES 4½ years – NPP 3 years.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms P Thorpe | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P Kilduff (trial) Ms A Sharpley (plea) | Slades and Parsons |
HER HONOUR:
1 Hayden Edward Byrne, following a trial, a jury found you guilty of one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment.
2 The circumstances of your offending were that, at approximately 6am on 2 August 2017, you acted together with your co-offender, Brendan Robert Hill, to commit an armed robbery. Your victim was a 69 year old man, who was riding his motorised scooter whilst taking his dog for a walk along the path at the Rosebud foreshore. Your co-offender, Hill, had possession of a weapon, namely a piece of conduit pipe. As your victim came along the path, Hill stepped out from some bushes ostensibly to ask your victim “for a light.” You then stepped out from the side of the bushes and stood in front of your victim’s scooter, effectively preventing him from proceeding further along the path. Your co-offender, Hill, who sounded angry, tapped the pipe in a threatening way into one of his hands, causing your victim to believe that he would be subjected to violence if he didn’t co-operate and, at one stage, Hill pulled an Australian flag off the motor scooter and threw it into the bushes. Hill shouted directions to you, with which you readily complied. Although I am satisfied that Hill was clearly “the leader of the armed robbery”[1] as your victim described, I am satisfied beyond reasonable doubt, in accordance with the jury verdict on the evidence put before the jury, that you enthusiastically joined in with the armed robbery.
[1]Transcript (‘T’) 49
3 Hill pleaded guilty to the offence and gave evidence against you to the effect that you did commit the armed robbery with him. CCTV footage shown to the jury showed you to have been in the presence of Hill late on the evening of 1 August 2017 (exhibit “F” at the trial) and, some 6 hours later, a male, alleged by the prosecution to be you, was captured on CCTV footage with Hill, walking down Seventh Avenue towards the foreshore shortly before the commission of the armed robbery (exhibit “D”). Further, your mobile phone records showed that you were making and receiving calls in the early hours of the morning around 3.32am and 4.42am in the Rosebud area, so that you were awake in the early hours of the morning not so long before the armed robbery occurred, at a time when most people would be sleeping. I am also satisfied beyond reasonable doubt that your co-offender’s brother, Russell Hill, drew to the attention of yourself and Hill the fact that the CCTV footage of two men walking down Seventh Avenue had been shown on television and that those two men were being sought by police in relation to the armed robbery, and that you said in response to viewing the footage “There’s no way they can ping me for this … where my face has been caught on cameras, they couldn’t get me”.[2] I am satisfied that this was capable of being used by the jury as an implied admission by you.
[2]T 139
4 When first spoken to by police, Hill denied that he was involved in this armed robbery. Even after that, he told lies to police. However, he ultimately admitted his involvement and, on 5 March 2018, indicated his intention to plead guilty to the charge. He gave an undertaking to give evidence against you for which he received a reduced sentence when sentence was passed on 30 July 2018.[3] He told the jury that he was telling the truth that you were involved in this armed robbery, albeit that he tried to minimise his own involvement in order to save face with his family and friends. As I have said, he was the one who was holding the weapon, and I am also satisfied that he was the one who did most of the talking to the victim during the armed robbery. However, I am satisfied beyond reasonable doubt, on the evidence of your victim, that you joined in by following Hill’s directions, and also taking some initiative by asking your victim “What’s this” when you located a mobile telephone on his person and you took that, a wedding ring, a watch and his jacket from him. In addition, when your co-offender, Hill, told your victim that he should walk away from the scene of the armed robbery, you took the initiative, after that, to instruct the victim to walk further away.
[3]Exhibit “F” at the Plea hearing, reasons for sentence of Pullen J, DPP v Hill [2018] VCC 1162 (30 July 2018)
5 You were arrested by police and interviewed on 11 August 2017. You told them that you lived in Rosebud with your girlfriend at her mother’s place. You claimed that you did not know anything, at all, about the armed robbery except that you had heard on the radio something about someone being robbed in Rosebud, but did not really pay any attention to it.[4] You claimed not to be able to remember where you were on the day of the armed robbery. Although you conceded that you regularly go to the Rosebud Hotel, you told police that you could not say whether you had or had not been there on the night before the armed robbery. You did recall being with Hill when police spoke to him one night and took him away with them, and brought him back so that he could stay where you were staying. At one point you said you recalled him ringing and knocking on the door, and that he had turned up,[5] but later stated that you refused to open the door to him.[6] You maintained that, on the evening or early morning of the armed robbery, you had no memory of going out again after getting home to where you were staying with your girlfriend, and were prepared to “do a line-up any day of the week”.[7] You described the allegation that you had committed an armed robbery as “absolutely ridiculous” and denied that you had done it.[8] Indeed, when it was put that items had been stolen from your victim and the keys had been taken out of his mobility scooter and he had been left to walk off on his own, you answered “I personally think that’s putrid”.[9]
[4]Record of Interview, answer to questions 74 and 75
[5]Answer to questions 111 to 118
[6]Answer to question 135
[7]Answer to questions 136 to 142
[8]Answer to question 144
[9]Answer to question 146
6 You have committed a great number of offences dating back to 1997, particularly ones of dishonesty and violence. These include two attempted armed robberies (2002), assault with a weapon (2005), a number of offences of possessing a controlled weapon without excuse (2005, 2008, 2009 and 2012), two charges of aggravated burglary (2009 and 2015) and intentionally causing injury and armed robbery (2015). It is also apparent that you have committed many other drug-related offences and, over the years, have served a number of prison sentences, the longest of which is a sentence of 54 months imposed by the Melbourne County Court on 3 December 2018 by way of re-sentencing for breach of a Community Correction Order for the offences of aggravated burglary, intentionally causing injury, armed robbery, being a prohibited person in possession of an unregistered firearm, trafficking in a drug of dependence and theft.
7 In a plea on your behalf, Ms Sharpley told the Court that you had a background of significant disadvantage. You are the oldest of three siblings. You were the victim of sexual and physical violence perpetrated by your father from when you were aged approximately 8 years until you finally left the family home at age 14. At that age, you ceased all education. You had found being at school difficult and, apparently had been diagnosed with ADHD and, also with Epilepsy, as a young child. You had begun using illicit drugs prior to becoming a teenager, and after leaving the family home you led an unstructured life where you were either couch surfing or homeless or sleeping on the streets. By age 15, you had developed an addiction to Heroin, which continued until you were aged 29. After that, you became a user of methamphetamine, which continued up until the time you were remanded in custody in relation to this armed robbery on 11 August 2017. Your father is now deceased and you have no contact with your mother or siblings. You were in a relationship with Ms Megan Scott-Smith at the time of the offending for which I must sentence you. Ms Sharpley stated that, although that relationship has ceased, her mother continues to have contact with you and has given you some support by visiting you in custody.
8 You are presently aged 40 years, having been born on 19 October 1979. You have no significant employment history, other than short-lived unskilled jobs, the last of which was apparently about a decade ago. You had the first of two serious relationships from age 23 to 25, by which you had one child, and you have no contact with him. Subsequently, you were in a relationship with Ms Scott-Smith, for approximately 7 years, from 2010 until you were remanded in custody.
9 I have already referred to your significant criminal history. Unfortunately, you were remanded in adult custody for the first time when you were only 20 years old and have been in and out of custody on multiple occasions since then. On a number of occasions, you were released from custody and remained in the community for periods of only 4 to 6 months before going into custody again. Over the 20 years since you first entered the adult prison system, the longest period of time that you have remained in the community was for 23 months, when you were aged 30 to 31 years.
10 You had been released back into the community only 5 months prior to this offending on 2 August 2017, after serving two years’ imprisonment, and you were still subject to a two year Community Correction Order as part of a sentence imposed in the County Court on 1 April 2015. As I have already stated, on 11 August 2017, you were, once again, remanded in custody and have remained there continuously until today, some 2 years and 7 months. During that time you have served two sentences imposed by the Magistrates’ Court: from 21 April 2018 to 20 August 2018 and, then, a further 4-month sentence from 21 August 2018. Subsequent to those, you were resentenced in the County Court in Melbourne on 3 December 2018 to 54 months’ imprisonment. This resentencing was for contravention of the 2 year Community Correction Order imposed as part of the previously mentioned combination sentence. Your counsel expressed concern that you may be institutionalised. She also noted that Mr Cummins, forensic psychologist, from whom a report dated 2 February 2015 was tendered in evidence (Exhibit “4”), recorded you describing yourself as “hermitized” while in protective custody.
11 Your counsel submitted that you had spent an onerous period in custody since being remanded for the offending for which I must sentence you. She stated that you had been placed in protection due to media attention which had been given to the circumstances of your crime. She stated that, previously, you have managed periods in custody quite well, as you know people in custody and know the system. You did not wish to be held in protection and have found this difficult as you are isolated from the support from people you know in custody. She stated that, currently, you are held in Sirius East Unit and have only three hours out of your cell each day, and may only associate with two other prisoners. You had instructed her that another reason was that you had an injured hand and would have been unable to defend yourself.
12 In addition, Ms Sharpley stated that for a continuous period of some eight months from 10 January 2019 to 14 August 2019, you were housed in the Charlotte Management Unit and permitted to be out of your cell for only 90 minutes each day. She submitted that this was a particularly onerous punishment which she understood to be related to you having illicit drugs detected on urine screens and also due to an incident with prison officers.
13 In the light of submissions made by your counsel, I requested a report from the Sentence Management Division detailing the circumstances under which you had been held in custody since being remanded in August 2017. An affidavit sworn 12 February 2020 by Jennifer Ann Hosking, Acting Assistant Commissioner, Sentence Management Division, Corrections Victoria, was provided to the court. I have marked this as Exhibit “H”.
14 It is apparent from this document that, since being received into the Metropolitan Assessment Prison on 16 August 2017, up until the present time, you have been transferred into different units and to different prisons on no less than 18 occasions. Initially, you were separated for your own safety to the Latrobe Mainstream Unit pending placement. This occurred because another prisoner at reception had identified you as the person who had gained media attention for the robbery of a war veteran in Rosebud.
15 Over the next 24 hours, you had only one or two hours out of your cell and could not physically interact with any other person. You were then transferred to the Spencer Unit, where you remained for 13 days. The Sentence Management Panel noted that you had received plastic surgery on your hand a few days prior to arrest and had also disclosed that you had been regularly using amphetamines prior to entering custody. During that 13 days, you apparently only had one to two hours out of your cell.
16 Thereafter, it would seem that you have, at various times, been placed in management units for a total of some 90 days, where you were only permitted to be out of your cell between one and two hours each day and had no contact with other prisoners. There appears to be another 190 days where you were housed in units with an intermediate regime, and were permitted only two to four hours out of your cell each day and had your capacity to associate restricted to two or three other protection prisoners.
17 You spent two days being observed in a Muirhead cell due to concerns about harming yourself back in February 2018. On those days you were only permitted to have six hours out of your cell. Otherwise, the balance of your time in custody (in excess of 550 days) has been in units where you were permitted greater than six hours out of your cell each day, either 8.5 hours or 11.5 hours, depending upon the unit and prison.
18 Unhappily, over the period that you have been remanded in custody, there appear to have been 38 days on which your conduct was regarded as constituting a disciplinary offence. On three of those days you were apparently engaged in two incidents, and on one day you were engaged in three incidents. On many occasions, the behaviour involved you producing a urine sample that tested positive for drugs. On other occasions, your behaviour resulted in discipline because you abused and threatened prison officers, assaulted a prison officer, possessed homemade syringes, buprenorphine, and a tattoo gun, placed paper over the observation window in your cell door, and refused to provide a urine sample for analysis. On another occasion, you refused to board the prison van in order to attend court.
19 Your behaviour in custody has resulted in withdrawal of privileges, including time out of your cell and visits, and resulted in your spending time in the management units to which I have referred.
20 There is also reference to some medical incidents:
· One, on 22 May 2018, appears to be an incident of self-mutilation by you cutting your fight forearm.[10] This incident resulted in you being placed in a Muirhead cell in the Exford Management Unit so that regular observations could be made of you in order to reduce the risk of self-harm. I acknowledge that the Exford Unit is a place of sensory deprivation. It would appear that you were in that unit for two days for observation after this episode of self-harm and, otherwise, your time in management units has resulted from the commission of “prison offences”.
· Three others appear to relate to you having an epileptic fit,[11] although a question was raised by prison authorities as to whether your seizure on one occasion was due to a drug overdose, which you denied.[12] You have insisted that the medication provided by medical staff to you in custody has not been effective and claim that you require medication which is apparently not permitted in custody. I here interpolate that, whilst you have been at liberty in the community, it seems that you have been non-compliant with taking medication for epilepsy. This is referred to in various medical records quoted in the report of Dr Loretta Evans. (Exhibit “2”)
[10]Paragraph [43] of Exhibit “H”
[11]12 October 2017, and 2 and 6 February 2018: paragraphs [15], [24] and [26] of Exhibit “H”
[12]Paragraph [28] of Exhibit “H”
21 You claim that you persistently take buprenorphine because you are not being medicated for your seizures. However, Exhibit “H” refers to a number of discussions where you have indicated to prison authorities that you have spent your whole life taking illicit drugs and have no intention of stopping and, also, that you have not been receptive to advice encouraging you to discuss what drug and alcohol problems would be available to benefit you. You have also declined to take methadone as you feel that it causes you to put on weight, and stated that you would continue to use buprenorphine when you could acquire it.
22 It is clear from Exhibit “H” that your behaviour in prison has presented a significant challenge to custody authorities, and that your placement options became increasingly limited, given your maximum security protection status whilst on remand.
23 Since 23 August 2019, you have been held in Sirius East Unit, which is a protection unit of intermediate status. You usually have only approximately three hours out of your cell each day and are permitted to mix with between one and three prisoners, depending upon their identity and whether approval is given for you to associate with them.
24 This unit is at Port Phillip Prison, and Ms Hosking’s affidavit stated that you do not receive visits there, as it is too far for family and friends to travel, although you have requested to remain there. The affidavit states that your continuing and repeated drug use makes it unlikely that you will be transferred to a less secure prison. Port Phillip is a maximum security prison and drug use is punished, as you are painfully aware.
25 Unfortunately, Sirius East Unit protection intermediate regime appears to be one of the units which does not permit a prisoner to apply for access to educational programs or to have access to a variety of recreational activities, such as table tennis, board games and gymnasium equipment. You are able to access programs to assist your offending behaviour, such as drug and alcohol, anger management, offending behaviour and pre-release programs, but this is subject to you being assessed as suitable. Unfortunately, as I have said according to Ms Hosking’s affidavit, on multiple occasions you have shown a disinclination to engage in drug and alcohol programs and relapse prevention programs.
26 Tendered at the plea hearing was the previously mentioned report of an assessment by Dr Loretta Evans, clinical neuropsychologist, dated 6 January 2020. This had been requested by your solicitors. It was a long, detailed and careful report. It referred to your sad and traumatic upbringing, the fact that you had been effectively on your own, and often homeless, after leaving home at age 14, your long-term abuse of alcohol and illicit drugs and extensive criminal history.
27 Dr Evans noted some inconsistencies in the history which you had given back in 2015 to Mr Cummins, forensic psychologist, who provided an earlier report (Exhibit “4”). These related to whether you, in fact, had been diagnosed with Attention Deficit-Hyperactivity Disorder and, also, childhood Epilepsy, whether you do have a 15-year history of depression, and the nature and extent of your history of illicit and prescription drug abuse. She was also unable to correlate some of your history, relating to intoxication, assaults, having seizures or overdosing on drugs, with your medical and hospital files.
28 Dr Evans had carefully read a number of your medical and hospital files, noting some presentations for drug overdoses and injuries following assault, including a fall in which you struck your head following a tonic clonic seizure in October 2008. She also noted that you reported a long history of depression, having allegedly been admitted to the psychiatric unit at Dandenong Hospital following a suicide attempt at age 18. However, she was unable to confirm this from health records, and noted that you had only ever engaged with a mental health professional whilst incarcerated. She considered that, at the time of her 3-hour assessment on 30 December 2019, you were emotionally stable and did not endorse indicators for acute suicide risk, although you were finding it stressful being in protective custody for the first time, as you were unable to associate with other friends who were in custody.
29 Dr Evans’ opinion is that your results on testing are not consistent with a diagnosis of intellectual disability or with deficits typically seen in temporal lobe epilepsy at this point of time (although she could not rule out that that would not occur over time, particularly if your epileptic status was not well-managed). She stated that, generally, you are within the low-average range intellectually, but your reading ability is normal, as is your understanding of language. Your attentional abilities are adequate at a basic day-to-day level, but decline dramatically with increased cognitive demand, and you have a lower than expected cognitive processing speed, as well as impaired memory bilaterally and, despite repetition, an inability to learn new information beyond your attention span. Thus, while she considered that these factors impact on your ability to be organised and plan and solve problems, you do not fall within the impaired range in these areas, although you can be mildly impulsive. She considered that your impaired memory and other executive inefficiencies are most likely due to cumulative hypoxic episodes secondary to GHB-related and heroin-related overdoses that have occurred over an extended period of time, resulting in a mild substance-related Acquired Brain Injury.
30 Dr Evans concurred with Mr Cummins that your history and psychological and behavioural symptoms are consistent with a diagnosis of Post-Traumatic Stress Disorder, which is likely to exacerbate memory deficits. She also considered that you are predisposed to develop maladaptive personality traits, which may also be contributing to your presentation.
31 Overall, Dr Evans is of the view that you demonstrate satisfactory understanding of societal norms and socially acceptable behaviours, as well as the capacity to appreciate right from wrong, and are well aware of your current legal circumstances, as well as the contribution of illicit drug use towards your actions, and are well able to self-reflect.
32 Dr Evans stated that you had told her that you are not housed in the mainstream prison population due to your abuse of the drug buprenorphine. She also noted that, notwithstanding significant periods of incarceration, you had always returned to illicit drug use upon release from custody, and that you had a problematic history of non-compliance with medical advice, including a failure to attend for follow-up monitoring relating to brain haemorrhages after your fall back in 2008, as well as a failure to follow-up on advice to recommence your anti-epileptic medication.
33 She mentioned that your Justice Health medical files over 2014 record that you had been managed on methadone throughout your incarceration and that you had requested medication to assist with sleep and had been prescribed antidepressant medication. However, she states that the files show that you were not consistently engaged or compliant with medical recommendations and often refused to attend without reason and had only ever engaged with a mental health professional whilst incarcerated.
34 Dr Evans also noted that, although you seem to understand that your drug abuse is linked to your criminal offending, you could not offer any concrete strategies to support your rehabilitation or prevent recidivism, even though you stated that you were willing to consider psychological counselling. (I here interpolate that this differs from Exhibit “H” which records your repeated refusal in custody to engage with drug and alcohol counselling). She considered that your history of excessive daily cannabis and ice abuse is the biggest barrier to your rehabilitation. Even though your profile did not rule out a capacity to engage well in therapy (in spite of poor memory), she noted that you were predisposed to potentially dismiss or sabotage interventions in the past and your commitment to therapy was likely to be problematic. She considered that any new information should be provided to you in a written form to assist your poor memory functioning and that you would also benefit from using lists and a journal to record important, lengthy or complicated information. Her report concluded as follows:
“… if (my emphasis) Mr Byrne is able to maintain abstinence and appropriately address the psychological issues that underpinned his drug taking behaviour, the risk of recidivism could be potentially (my emphasis) reduced. However, without such intervention, it is my opinion that Mr Byrne is at high risk of resuming illicit drug abuse in the future, and consequently, returning to maladaptive criminal behaviours upon his eventual release into the community.”
35 Mr Byrne, the offending for which I must sentence you is truly despicable. Your victim was a 69-year-old man who, by virtue of being on a mobility scooter, plainly had mobility issues. He is a Vietnam veteran who suffers a number of health issues relating to his service in Vietnam, including Post-Traumatic Stress Disorder. Your criminal offending against him was particularly cowardly. Not only did you and Hill outnumber him by two to one, and each of you were very significantly younger than he was, but he was plainly at a disadvantage by reason of his being on a mobility scooter.
36 A Victim Impact Statement made by him, dated 4 March 2018, was filed as Exhibit “A”. He stated that he underwent many years of therapy and medication for Post-Traumatic Stress Disorder after his service in Vietnam. He is on a total and permanent incapacity pension, but stated that all the treatment helped him to achieve control over his Post-Traumatic Stress Disorder and he enjoyed his morning outings on the foreshore, taking his registered home therapy dog for a walk, whilst using his mobility scooter provided by the Department of Veterans Affairs. It is abundantly clear from your victim’s statement that the offending by yourself and Hill has caused a significant relapse in his Post-Traumatic Stress Disorder symptoms, which have impacted adversely on his quality of life. He states that the impact of your crime has set him back by 20 years and he is now back in therapy and on increased medication, and his physical and mental health have worsened. He feels unsafe, and has a heightened sense of alertness, even in his own home. He grieves his reduced mental and physical health and the fact that he is not able to enjoy his later years of life with his family in a way that he had imagined.
37 The consequences of your offending described by your victim are understandable and foreseeable consequences. He was taken by surprise by you. You deprived him of his jacket in the early hours of a winter morning. You deprived him of his mobility scooter, telling him to walk away, when he did not even have the assistance of a walking stick. You stole his mobile phone so that he was unable to call for help. You took his watch from his wrist and, even, his wedding ring from his finger. In the wallet containing his mobile phones were a number of essential cards, including his Veteran’s Affairs card and access and debit cards, the loss of which would occasion anxiety and inconvenience to any person.
38 I accept that Hill was the lead offender, but you showed no hesitation in following and, as previously mentioned, seemed to have taken a couple of initiatives of your own as you joined in this antisocial and frightening offending, which would cause any person to be afraid, but particularly someone who was elderly and limited in his mobility. Although there was no gratuitous violence, the behaviour of you and Hill was extremely callous. It strikes at the entitlement of your victim and every other citizen to feel safe in and quietly enjoy their own neighbourhood.
39 Your co-offender, Hill, pleaded guilty to the offence of armed robbery, as well as two other unrelated charges of burglary and theft. On 30 July 2018, Judge Pullen, in the County Court of Melbourne, convicted and sentenced him to two years’ imprisonment for the armed robbery. Her Honour made it plain in her sentencing remarks that she reduced the sentence she would otherwise have imposed overall by reason of his pleas of guilty and, on the charge of armed robbery, to reflect the undertaking that he gave to the Court to cooperate with the prosecution in the court hearing involving yourself. As I have stated, he honoured that undertaking and gave evidence for the prosecution at your trial.
40 Your counsel submitted that parity should apply in relation to the sentence imposed on Hill and yourself for the armed robbery. Generally speaking, like offending should attract a like sentence. However, there are significant differences between Hill’s situation and yours. For a start, Hill pleaded guilty to the offence at an early stage, whereas you protested your innocence and ran a trial. Whilst it is plain that an offender who is convicted at trial should not receive a higher penalty by reason of the fact that he has chosen to contest the charge, the fact is that you are not entitled to a discount on your sentence for pleading guilty as was the case with Hill.[13] Nor are you entitled to a discount by reason of cooperation with the authorities as Hill was entitled. There is no standard discount on a sentence for co-operation by an informer, but where the information is very valuable and there are high risks to which an informer thereby exposes himself, the Court of Appeal has indicated that even a discount of 50% may not be enough.[14] I do not speculate as to what was in Judge Pullen’s mind, but it is clear that, without the co-operation and evidence of Hill, the jury may not have been satisfied beyond reasonable doubt of your guilt.
[13]The sentencing remarks of Judge Pullen make a declaration pursuant to s. 6AAA Sentencing Act 1991 (Vic) in relation to all 3 charges to which Hill pleaded guilty of 7 years’ imprisonment with a non-parole period of 5 years (paragraph 27, Exhibit “F”). However, this does not assist with what might otherwise have been imposed on the armed robbery charge alone.
[14]R v Johnston [2008] VSCA 133 per Nettle JA
41 In your Record of Interview, you denied involvement in the offending, which you described as “putrid”, but, unlike Hill, you have not acknowledged responsibility for it. Nor have you shown any remorse whatsoever. Indeed, your victim was put through the trauma of having to give evidence in the trial, and was cross-examined by your counsel, and had to relive the whole traumatic episode which has so adversely impacted upon his life.
42 I do take into account that Hill instigated the offence and had possession of the pipe as a weapon, which he aggressively tapped into one of his hands as he made demands of your victim. However, you in no way distanced yourself from his conduct, carried out his demands, and by your presence increased the intimidation of your victim. You were also the person who physically handled the victim by taking off his jacket and going through it and removing the other property to which I have referred, and reinforced Hill’s direction to the victim to walk away by telling him to walk further away.
43 Certainly, Hill has a criminal history dating back to 2001 and this includes a charge of intentionally causing injury and multiple dishonesty offences, such as burglary, theft and handling stolen goods, and a host of drug offences, as well as possessing a controlled weapon without excuse. Like yourself, he was also on a Community Correction Order which he breached by virtue of this and other offending. Hill has served three sentences of imprisonment, namely the unexpired portion of a breached intensive correction order (270 days) in 2008, a 9-month sentence wholly suspended for 18 months in 2008, 4 months’ imprisonment in 2009 and 14 days’ imprisonment (in combination with a Community Correction Order) in 2015. Unlike your criminal history, there is a noticeable gap in Hill’s criminal history over a period of six years when he did not appear before a court between September 2009 and December 2015. The commission of this armed robbery was an escalation in his offending. Judge Pullen, when sentencing Hill, noted that the offending occurred in the context of a personal crisis following the breakdown of his relationship, which lead to a dramatic escalation in drug and alcohol use, but there was evidence before her Honour of a good work history, family support, and motivation to improve his circumstances so that he could connect with his children. Although he had not involved himself in any drug and alcohol counselling prior to incarceration, he had remained abstinent from illicit drugs whilst in custody prior to being sentenced and six urine analysis reports indicated negative results for illicit substances, which were tendered. Also, he had undertaken a number of rehabilitative programs in custody, and was working as a laundry billet. Her Honour was guarded concerning Hill’s prospects of rehabilitation, but did note a number of protective factors which seem to be absent in your case, namely, good work history, family support and the motivation to improve his circumstances. Apart from his early plea of guilty, there was evidence of insight into his offending, motivation to cease use of drugs and remorse mentioned in an opinion from Dr Cunningham, psychologist.[15]
[15]Paragraphs [86] and [95] of Exhibit “F”
44 Compared to Hill, you have a longer criminal history, dating back to 1997 and a more serious one. As I have mentioned, it includes two attempted armed robberies, assault with a weapon, a number of offences of possessing a controlled weapon, two charges of aggravated burglary and intentionally causing injury and armed robbery, as well as many drug-related offences. You have no employment history of particular note and apparently you have not held any job in the last decade. You have also served multiple sentences of imprisonment. As I have already stated, you had been released back into the community only 5 months prior to committing this offence, after having served 2 years’ imprisonment, and you were in breach of a Community Correction Order when you committed the offending. These factors, together with a long history of returning to illicit drug use upon release from custody and, indeed, as indicated in Exhibit “H”, a history of continuing to use drugs whilst in custody, along with an apparent lack of motivation to engage in drug or alcohol rehabilitation and the commission of further offences in custody, cause me to be pessimistic about your prospects of rehabilitation. I certainly assess them as very significantly less than those of Hill.
45 It would be wrong of this Court to say you have no prospects of rehabilitation, but, as is apparent from Exhibit “H” and from Dr Evans’ report, you appear to be predisposed to dismissing or sabotaging drug and alcohol and other psychological counselling, and I agree with Dr Evans that, getting you to commit to treatment in order to address both your substance abuse and psychological problems from childhood trauma, “is likely to be problematic”.[16]
[16]Page 11 of Exhibit 2
46 There is no evidence that the offending for which I must sentence you was pre-planned, but I have little doubt that dishonest behaviour in order to support a long-term drug habit has become a way of life for you. Unhappily, by reason of your drug use, you have been a menace to society for over 20 years when out in the community, and Exhibit “H” makes it plain that you pose a very difficult management problem to prison authorities when you are in custody. Of course, you are not be punished by me for any prior offending or poor behaviour whilst in custody, but your history in this regard does cause me to have grave concerns about your prospects of rehabilitation.
47 It is a tragedy to look at someone aged 40 who has started life with a sad background of disadvantage and abuse and then ended up as a recidivist criminal, dependent on illicit drugs, with a wasted life. I acknowledge that your time in custody has been onerous, unhappily due to your own behaviour and refusal to look at addressing your drug problem. There is an ill-defined issue concerning your epilepsy, which appears to have been compounded by you failing to engage with treatment whilst at liberty in the community and insisting that what treatment is offered to you in custody is of no use to you and, of course, by you continuing to use illicit drugs. Whilst acknowledging that the trauma of your early childhood is likely to impact upon you long term and that you do apparently have symptoms consistent with Post-Traumatic Stress Disorder (albeit that there is no indication that these were operative at the time of the offending or are of a magnitude sufficient to attract the principles in R v Verdins; R v Buckley; R v Vo[17]), and that you do have a mild brain injury which particularly impacts upon your memory, there can be no doubt that the only appropriate sentence for this appalling offending is one of imprisonment.
[17](2007) 16 VR 269
48 You present as a somewhat pitiful character with very few supports in your life, with the exception of the mother of your ex-partner. She was in court to support you, at times, during the trial and provided a reference dated 12 February 2020 (Exhibit “5”). She has written that she is aware of your very difficult upbringing and describes you as “a very caring, loyal person who would do anything for you if asked, sometimes to his own detriment.” She continues to trust you and support you and tries to visit you in custody at least once per month.
49 I hold real concerns that you are institutionalised. It is tragic to read some of the things you told Dr Evans. You stated that, after your abusive childhood and subsequent fear associated with being on your own and homeless, “the first time I came to gaol was the first time I didn’t feel scared…they had me in a unit and I got along with everyone. I got out, but I had no fear of coming back.”[18] You went on to tell her, “all my friends are in gaol…I’ve grown up in here: had my first shave, my son took his first steps…”[19] In the past, being able to meet up with old associates in custody has meant that you have had a support network. You told prison management authorities that you do not intend to stop drug use because, otherwise, you will put on too much weight and you find it “easy prison time” when you are under the influence of drugs.[20] You have Hepatitis B and Hepatitis C, and liver cirrhosis, have not worked for many years and have no idea what you will do when released. You have told Sentence Management that you do not wish to undertake a prison job because you do not wish to work in order to pay off prison fines.[21] Unless you somehow alter your view to try to do something positive by way of engaging with drug and alcohol programs and doing something useful like undertaking work in custody, I fear that the sentence I impose will be served by you in much the same way as your period in custody since August 2017, involving multiple prison offences and onerous periods in management units. It is unclear whether you will need to remain in a protection unit for the period of the sentence which I impose. That would appear to be your current position although, according to Exhibit “H”, you will be comprehensively reassessed and classified following the passing of this sentence. It is concerning that, if you were to continue to be housed in Sirius according to an “Intermediate regime” as you now are, your access to educational programs and recreational activities in the unit will be non-existent, albeit that you would be able to access rehabilitative programs in relation to drug and alcohol and other aspects of offending behaviour.[22]
[18]Paragraph [4] of Exhibit “2”
[19]Paragraph [34] of Exhibit “2”
[20]Paragraph [66] of Exhibit “H”
[21]Paragraphs [70] and [93] of Exhibit “H”
[22]Paragraph [108] of Exhibit “H”
50 You had been in custody for several years prior to your release some 5 months before this offending. You have now been in custody again for another 2 years and 7 months. Since being transferred to Sirius East Protection Unit on 23 August 2019 up until the present time, your average time out of your cell has been only 3 hours per day and you physically interact with between one and three prisoners. During the time since you were taken into custody on August 2017, you have served 3 sentences to which I have previously referred. You completed serving the County Court sentence on 30 September 2019. It is agreed by the parties that, in relation to the offence for which I must sentence you, there has been 478 days pre-sentence detention which, pursuant to Section 18 of the Sentencing Act 1991 (Vic), should be reckoned as served up until 28 January 2020 (the day prior to the plea hearing). Obviously, further days have been served by you, up until yesterday, making a total of 493 days’ pre-sentence detention to be reckoned as served.
51 In sentencing for this offending, the Court must denounce your conduct in committing an armed robbery on a very soft target. Unhappily, armed robberies committed by drug users are very prevalent and the Court must emphasise general deterrence and make it plain to other people who are minded to engage in this offending, that they will be appropriately punished. Given your relevant prior history, particularly of armed robbery and attempted armed robbery, and a host of other dishonesty offences, there is also a need in sentencing you to emphasise specific deterrence. The community must be protected and victims like yours must feel vindicated. Although one could not help but have compassion in relation to the childhood trauma you have suffered, and I certainly take it into account, your repeated refusal to do anything about your illicit drug habit has meant that criminal offending has become a way of life for you. As I have already stated, unless you become motivated to do something about your drug habit, I consider that your prospects of rehabilitation are poor and that you will go on being a menace to society and have a miserable and wasted life, returning to prison time and time again. It is trite to say that it is unfortunate if your good qualities mentioned in the reference to which I have referred cannot be used to your benefit.
52 I do urge those in charge of your custody to be mindful of the fact that you do have a mild Acquired Brain Injury with memory problems, which are best assisted by new information being provided in a written form and the encouragement of the use of lists and making a journal for recording important, lengthy or complicated information.[23] I also strongly urge that your health status concerning epilepsy be comprehensively assessed, otherwise there is a risk that temporal lobe deficits could occur if your condition is not well managed.[24] I have taken both these vulnerabilities into account in sentencing you, of which custody authorities should be mindful. They are matters personal to you which make serving a term of imprisonment more onerous. I also urge that every effort be made to encourage you to engage in intensive drug and alcohol counselling while you are incarcerated, in order to provide relapse prevention strategies, as well as regular psychiatric or psychological counselling relating to your long-term unaddressed issues, otherwise, as predicted by Mr Cummins back in 2015 (Exhibit “4”), “it is very likely that the longer time [you] spend in custody, the more entrenched [your] mental health problems will become”.[25] Further, it should be noted that Dr Evans has flagged that, given the likely presence of post-traumatic symptoms, you “may decompensate from an emotional perspective if psychological and/or emotional factors are not adequately addressed”.[26]
[23]See Paragraph [39(iii)] of Exhibit “H”.
[24]Paragraph [39(i)(b)] of Exhibit “2”
[25]Paragraph 35 of Exhibit “4”
[26]Exhibit “2”, paragraph 39(iii)
53 The seriousness of this offending is reflected in the maximum penalty of 25 years’ imprisonment. Although, as I have said, there is no evidence that your offending was premediated, it is a serious aggravating factor that your victim was such a vulnerable person, and it is of concern that you have shown no remorse. I am mindful of the fact that over the last decade you have spent a very significant amount of time in custody but, unhappily, you are a serious recidivist and you do yourself no favours by your bad behaviour in custody. I am mindful of the sentencing principle of totality, insofar as you were remanded in custody in August 2017 on the matters the subject of the Magistrates’ Court sentence on 20 August 2018 as well as the armed robbery charge. I consider it appropriate to sentence you to a head sentence with a non-parole period. However, as you are aware, the issue of whether you are granted parole is one for the Parole Board, alone, not me. Also, as you would be aware, if you continue to offend whilst in custody, this is not going to enhance your chances of receiving parole.
54 Would you please stand up.
55 On one charge of armed robbery, you are convicted and sentenced to be imprisoned for a period of 4½ years with a non-parole period of 3 years. I declare a period of pre-sentence detention of 493 days to be time reckoned as already served under the sentence imposed this day.
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