Director of Public Prosecutions v Byrne

[2018] VCC 1130

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-00822

DIRECTOR OF PUBLIC PROSECUTIONS

v

JENNIFER BYRNE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	24 July 2018
CASE MAY BE CITED AS:	DPP v Byrne
MEDIUM NEUTRAL CITATION:	[2018] VCC 1130

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Moore
For the Accused	Mr S. Peterson

HIS HONOUR:

1Jennifer Byrne, you have pleaded guilty to one charge of armed robbery, one charge of reckless conduct endangering serious injury and one charge of theft of a motor vehicle.  The maximum penalties for those crimes are 25 years, five years and 10 years respectively.  You are 32 years of age.  You pleaded guilty at the earliest reasonable opportunity and cooperated with police.  I accept that your plea is accompanied by appropriate remorse and you must of course also get the utilitarian benefit of that plea of guilty.  You made substantial admissions to police when speaking to them.  All that stands in good stead for you.  You have prior convictions, but they are of no real significance in this sentencing process. 

2A summary of the offending is that you, and I accept, had not used illicit substances for some period of time, were on a bit of a bender.  In any event, on 27 January 2018, you drove from Leongatha to Drouin and you went into the United Service Station on Princess Way, Drouin.  There was one attendant working there, you entered and took two Up & Go drinks from the fridge, valued at $5 each.  I sign and hand down the disposal order in relation to those.

3You then proceeded to the counter where you produced a knife and said "I'm robbing you, just open the draw".  The man behind the counter refused to do that, where you simply picked up the drinks, returned to your car and drove away.  The incident was captured on CCTV footage and depicts you entering wearing a black bikini top and blue denim shorts.  Tendered during the plea was a photograph which I am assuming was taken when you are at the police station, or very shortly thereafter and you were indeed in a pretty poor state at the time.

4In any event, after leaving the service station, you then proceeded to drive along the road heading towards - I do not know where you were going.  You probably do not know yourself.  You were driving west in any event.  You went onto the wrong side of the road, you ran off the road, another vehicle was coming and had to avoid you and that gives rise to a reckless endangerment.

5After that, you in somewhat bizarre circumstances, went to the vehicle of the other people and tried to swap your vehicle for it and in any event, you could not, there were problems with that and you drove off and that gives rise to theft of their motor vehicle.  The situation is it is pretty bizarre offending, but the trouble is, with armed robbery, once you produce a knife and put the other person in fear, the Sentencing Judge does not have a lot of options after that occurs.

6As I say, it is at the lower end.  There was no attempt to disguise yourself.  I accept that it was unpremeditated and you must have presented a pretty pathetic sight on the other side of that counter, indeed to a level where the man simply would not open the draw.  There is no victim impact statement.  Obviously armed robbery is serious and cause the application of general deterrence.  This is your first time in gaol and I am sure that acts sufficiently as specific deterrence for you and of course there must be an appropriate punishment.

7I then turn to matters personal to you in endeavouring to ascertain the appropriate punishment.  The Crown agree that a combination sentence is within range and I think that is a very sensible outcome in all these circumstances.  Your counsel presented a plea on your behalf and very helpful sentencing submissions.  You were brought up in Gippsland as one of thirteen children.  You obviously had a dysfunctional childhood and a very disciplinarian father who you now basically seem to have no contact with at all.

8You started using cannabis at 13, speed at 15, heroin at 16 years of age.  You left home at 15 to go with a boyfriend who was 21.  You had a son who now lives with his paternal grandfather.  You have contact with him on an occasional basis as he is in permanent care.  In more recent times, after having not used for an extended period, you had a number of pets and one of those died causing you great distress.  Your relationship was on the rocks, if I can put it that way, and you also had a miscarriage.

9It was in that set of circumstances that you commenced to use again for the first time after a substantial period of being clean.  I accept what your counsel says having read the report of Mr Ball, that you do have real issues with attachment and self-esteem.  I do not think I really need to go through all that.  But the fact of the matter is, I accept you were in a distressed state and it was in those circumstances that this bizarre, but serious offending occurred.

10There is no suggestion that Verdins plays any part in all this, but you obviously have severe psychological difficulties that you have to deal with.  Since you have been in gaol you have done courses and that is very much to your credit.  You have been attending Narcotics Anonymous and again, that is very much to your credit.  You have the support of a gentleman who is going to assist you financially upon your ultimate release, if that be needed, and I accept that the prospects of your rehabilitation are pretty good in this situation, even though there are aspects of it that I would regard as high because of what Mr Ball has to say.  The risk of you reoffending, that you do not use, will be virtually zero.

11In this circumstance where you did use for a long period of time and had not resorted to this type of offending, that gives a Sentencing Judge confidence that you may well indeed be able to turn it around and live a useful and happy life.  So taking all those matters into account, I have had you assessed for a community corrections order.  They have found you acceptable and I am going to give a sentence of imprisonment with a community corrections order to follow upon your release.

12Accordingly, on the charge of armed robbery, you are sentenced to nine months.  On the charge of reckless endangerment, three months concurrent.  On all those three charges, you will then, upon your release, be placed on a community corrections order with conviction for a period of three years.  The conditions of that will be of drug rehabilitation, mental health and programs to reduce reoffending.  They assess you as being a high risk of reoffending and I will leave it up to them as to what you may be able to do, to reduce that risk.  There will also be supervision.  As I understand it, they are asking to have the release be to Moorabbin Corrections and if you do come back to Leongatha, or you do come to Morwell, I am sure they can transfer that pretty easily and pretty readily.

13Insofar as the theft of the motor vehicle is concerned, it is the situation where I have to suspend your licence for a period of time, but I want the circumstances where you are able to comply with the community corrections order upon your release and I do not want a situation where you are unable to obtain employment in a rural area because you have not got a driver's licence.

14So accordingly, in these circumstances, I will simply suspend any licence to drive a motor vehicle for one month.  I will direct that 178 days be reckoned as having been served under the sentence and that is a bit academic with these community corrections order situations, say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of two years, with the minimum term of one.  Are there any other orders I have to make gentlemen?

15MR PETERSON:  No, Your Honour.

16HIS HONOUR:  All right.  Now we need to - yes, just get her to sign that, as I am sure she will.  Do you mind going down the dock with my associate?  Thank you, Mr Peterson.  All right, the community corrections order is signed.  Also I must advise you that I made a 464ZF order that you provide a saliva sample for DNA purposes.  I must advise you, should you refuse to provide such a sample to police, then they use reasonable force to take it from you.  All right, nothing else I need to do?

17MR MOORE:  No, Your Honour.

18MR PETERSON:  No.

19HIS HONOUR:  No, all right.  Yes, thank you.  Thank you for that gentlemen.

20MR PETERSON:  Please the court.

21HIS HONOUR:  Thank you Mr Peters.

22MR PETERSON:  Thank you, Your Honour.

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