Director of Public Prosecutions v Byrne

[2015] VCC 762

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02148

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BYRNE

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JUDGE:	HER HONOUR JUDGE WILMOTH
DATE OF HEARING:	24 March 2015 at Warrnambool
DATE OF SENTENCE:	5 June 2015 at Melbourne
CASE MAY BE CITED AS:	DPP v Byrne
MEDIUM NEUTRAL CITATION:	[2015] VCC 762

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to using an unregistered  long arm firearm being a non-prohibited person; attempting to pervert the course; nine summary driving-related  offences; attempted to persuade friend to make false report to police; brain damage with cognitive and memory functions affected; Ice addicted; relationship breakdown; some insight into behaviour; risk of institutionalisation.
Legislation Cited: Sentencing Act 1991
Cases Cited: Verdins v R [2007] VSCA 102
Sentence: 18 months imprisonment, 2 years CCO 100 hours unpaid work over 6 months. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis Mr A. Steven	Office of Public Prosecutions
For the Accused.	Mr M. Langlois	VLA Warrnambool

HER HONOUR: 

1Daniel Byrne, you have pleaded guilty to one charge of using an unregistered long arm firearm being a non-prohibited person, and one charge of attempting to pervert the course of justice.  The maximum penalties for these offences are seven years' imprisonment for the firearm offence and 25 years for attempting to pervert the course of justice.

2You have also pleaded guilty to nine summary charges as follows.  Exceeding the prescribed concentration of alcohol, for which the maximum fine is 20 penalty units; driving a vehicle in a way that made unnecessary noise, for which the maximum penalty is 2 penalty units; three charges of failing to stop after an accident and provide details, for which the maximum penalty is 5 penalty units or 14 days' imprisonment.  For a subsequent offence the penalty is 10 penalty units or imprisonment of not less than 14 days and not more than a month.  Unlicensed driving, the maximum penalty is 25 penalty units or three months' imprisonment.  Using an unregistered vehicle, for a second offence the maximum penalty is 50 penalty units.  You have a previous conviction for this offence in 2011.  Using a vehicle that did not comply with the required standard, in other words with brakes that did not operate properly, the maximum penalty is 5 penalty units.  Driving in a manner dangerous, the maximum penalty is 240 penalty units or two years' imprisonment.  It is a mandatory requirement in that regard that your licence be cancelled or you be disqualified from obtaining one for six months at least.

3The circumstances were that you crashed your car and then falsely reported it to have been stolen.  On the evening of 21 June 2014, you were out socialising with friends, including Cameron McKenzie, visiting various licensed premises.  You had been drinking alcohol and at about 11 pm you and your friends returned to the car park, from where you left with Mr McKenzie in his car.  He drove you to Liebig Street where your car was parked and he then lost sight of you when you got out of his car.

4You then drove your own car, which was unregistered and had faulty brakes.  You were unlicensed at the time as your probationary licence had expired five months earlier.  You drove north along Liebig Street and travelled at a fast speed.  You turned right at the Lava Street roundabout, causing the tyres to screech and the wheels to emit sparks as observed by witnesses.  You then lost control of the car and hit two parked cars which were parked outside the Victoria Hotel in Lava Street.  The first car with which you collided was forced up on to the footpath and was badly damaged, having to be towed from the scene later.  The second car was only slightly damaged, but you then reversed into the centre of the road and attempted to execute a U-turn.  In doing so, you collided with the rear of a third car parked near the other two and continued accelerating into it to complete the turn, pushing it on to the footpath and damaging it so severely that it too had to be towed away.  You did not stop to notify anyone of the damage and drove away.

5McKenzie observed your car and rang you, whereupon you told him your car had been stolen and he told you to notify the police.  You did so, reporting your car as being stolen.  Your car broke down in Coulstock Street, Warrnambool, and you were there alone when the police arrived.  You told police that you had seen your car being stolen from the car park when your two friends were with you.  You said you had got into McKenzie's car and he had driven to the location where your car was found and two people had been seen running from it.  The police officer rang McKenzie to confirm your account and he stated that he had not dropped you off at your car.  Police formed the view that you had been the driver of your car and a breath test was performed, producing a reading of 0.039 per cent.  As the holder of an expired probationary licence your required limit was zero.

6You admitted to having driven earlier in the night, that you knew the car was unregistered and that the brakes were not working, and you were unlicensed because you had been in gaol.  A few days later the police visited your home and told you they believed you had been the driver at the time of the collisions and that your car had not been stolen.  You repeatedly told the police you stood by your report.  Even after being advised of the legal consequences of making a false report, you maintained your position and signed a statement to that effect.

7After the police had left, you sent a text message to McKenzie, suggesting what he should tell the police if he were asked, that is to say that the two of you saw your car being driven and then came upon the wreck and McKenzie dropped you off at the car.  There being no response, you sent him a message asking him to ring you.  He did not reply and you sent a further message, emphasising that he needed to know what you had told the police.  McKenzie did not reply but notified the police.

8On 25 August, police executed a search warrant at your home and located a video clip of you firing an unregistered homemade gun.  When interviewed by the police, you continued to deny having driven the car and stood by your statement.  You said you suffered from short-term and long-term memory loss and could not remember much other than having reported the car being stolen.

9You entered your plea of guilty at the committal which proceeded by way of straight hand-up-brief in December and you have accepted that you committed the offences, explaining that you made a false report because you panicked, having just been released from prison and having been recently placed on a Community Corrections Order.  That plea means you are entitled to a discount under the sentence for facilitating the system of criminal justice and for saving the expense and inconvenience of a trial.

10You are aged 25, one of seven brothers, six of whom live with your mother in Warrnambool.  You have recently been living either with her or with your grandmother, who has provided a letter for the court, placing your offending in the context of drug abuse and poor judgment in the wake of the breakdown of your relationship with your former partner, who is the mother of your two small children.

11You left school at Year 9 and commenced a trade.  At the age of 17 you were involved in a serious car accident and suffered brain damage, with cognitive and memory functions affected.  Your long-term relationship with your partner ended and there is an intervention order in place which prevents you from seeing the children.  Following the estrangement, you turned to drug use, particularly ice, and you became addicted.  On 19 January this year you were sentenced to serve a four-month term of imprisonment for offences of contravening an intervention order.  You have been on a Community Corrections Order, as I said before, which was cancelled by the learned magistrate due to unsatisfactory progress.

12The charge of attempting to pervert the course of justice is a serious charge because it tends to undermine the integrity of the criminal justice system and causes the unnecessary diverting of police resources.  The driving charges are also of a serious nature, particularly the charges of dangerous driving and driving after having been drinking, as you did.  You caused extensive damage to two of the cars and did not have the decency to stop and provide details as the law requires.

13Your past offending mainly falls into two categories, driving offences and contravening family violence orders.  On 6 May 2014 you were sentenced to three months' imprisonment, to be followed by a nine-month Community Corrections Order which had just commenced when you committed these offences.

14A prison sentence is called for, partly to denounce such offending and to deter others from it, and also to deter you from breaking the law as well.  The public deserves protection from this type of offending and the system of justice is seriously undermined by attempts to pervert the course of justice.  Not only did you report your car as being stolen when it was not, but you also denied having been the driver when it was involved in what occurred.  Most seriously of all, you tried to persuade Mr McKenzie to make a false report to the police that he was with you when you found your car damaged by the side of the road in an attempt to create a picture of your innocence.  It is a very serious charge deserving of severe punishment.  A sentence of imprisonment is therefore called for, as I said, but as a relatively young man your prospects for rehabilitation should be considered carefully.  Protective factors in your favour are your strong family support, your wish to further your education and attain qualifications to enhance your job chances, and your wish to be able to see your children on a regular and permanent basis.

15The conclusions by Dr Stargatt, the neuropsychologist who examined you in November 2013, included that you suffer from a degree of impairment, consequent upon the car accident which occurred some years ago, impairment which is stabilised and which is permanent, affecting the activities of daily living.  You reported then that you had lost your friends since the car accident and had been unable to make new ones, and perhaps the fact that you were prepared to exploit Mr McKenzie's friendship points to some dysfunction in this regard.  You reported to Dr Stargatt that the impediments to friendship were your slurred speech, poor memory, and limited ability to keep up conversations, resulting in a lack of confidence.  You seem to have had some insight into the reasons for the breakup of your relationship, that is having trouble regulating your moods and behaviour, becoming aggressive, and your partner having interpreted your memory failures as lack of responsibility.  For similar reasons, together with poor balance, you were unfortunately unable to maintain your employment as a roof truss assembler.

16You were assessed recently by Dr Michael Daffern, a clinical forensic psychologist, who noted what he described as adolescent conduct disturbance, including non-compliance, aggression, and acquisitive criminal behaviour.  There was some reference to that this morning in the submissions from counsel.  Along with the abuse of drugs and alcohol, you developed a tendency towards reckless behaviour. Dr Daffern considered that neuropsychological impairment has resulted from the serious car accident, with anxiety and depression as well.  His opinion is that you were likely suffering from the neurological impairment at the time of the offending.  The principles in the case of Verdins therefore apply, as your criminal culpability is somewhat reduced by that impairment.

17As to some insight which you do possess in relation to your behaviour, I note with concern that that insight might not extend to your use of methylamphetamine, to which you have resorted to help in improving your mood.  Clearly, this must be addressed by any drug treatment course that you may be able to undertake.  Dr Daffern also reported your indication to him that you are finding prison difficult, and he concluded that prison is likely to be more onerous for you than for others because of your condition.  This also raises the principles in Verdins, the case to which I referred a moment ago, and it is to be taken into account in determining the length of your sentence.

18You have now served two prison sentences, the second of which expired on 22 May, so your time in custody since then is in regard to these offences.  It amounts to 17 days, not including today, and I declare that time as reckoned as already served and I shall cause that to be noted on the court record.

19Although you are finding the experience of prison difficult, to your credit you have committed yourself to taking on whatever employment is available and you are currently working as a cleaner at Port Phillip Prison.  You have tried to engage in a computer course, but this was interrupted by your move from Fulham to Port Phillip.  Your time in custody has been made more difficult by the fact that your family lives in Warrnambool and you have not been able to have the benefit of their support in court today or on visits, even though they continue to support you.  Despite these problems, you feel somewhat comfortable in prison and apprehensive about being released and there would appear to be some risk of institutionalisation.

20For the combination of these reasons, a prison sentence followed by a Community Corrections Order is an appropriate disposition, one which is urged upon me by your counsel and which is considered within range by the prosecution.  The prison sentence should be tempered by the need to avoid it being crushing upon you, particularly in view of the fact that you have served other sentences over the past year or more.  Too long a sentence could promote the risk of institutionalisation and could discourage you from the positive aspirations you have expressed.

21You have been assessed as unsuitable for a Community Corrections Order because of your recent non-compliance and further offending whilst subject to such an order.  Nonetheless, I intend to impose an order, taking into account that it will not commence until you are released from prison after serving the term that I will be imposing.

22Dealing first with Charge 2 on the indictment, which is attempting to pervert the course of justice, the sentence is 12 months' imprisonment.  This sentence will be the base sentence for the purpose of cumulation. 

23Charge 1 on the indictment, using the firearm, nine months' imprisonment.  Three months of that sentence will be served in cumulation upon the base sentence. 

24Turning to the summary charges, for exceeding the prescribed concentration of alcohol, a conviction and fine of $500.  The reading was 0.039 and you are disqualified from obtaining a further licence or permit for six months.  That is longer than the minimum, taking into account the surrounding circumstances of the offending. 

25For driving and making unnecessary noise, conviction and fine of $100. 

26For the three charges of failing to stop after an accident, 14 days' imprisonment for each charge.  The sentences for the second and third of those charges are to be served in cumulation, that is 28 days. 

27For unlicensed driving, 14 days' imprisonment, and that is to be served concurrently.

28For using an unregistered vehicle, your second offence, conviction and fine of $500. 

29For using a vehicle with non-compliant brakes, convicted and fined $100. For dangerous driving, three months' imprisonment.  You are disqualified from obtaining any further permit or licence for 12 months.  Two months of that sentence is to be served in cumulation upon the base sentence. 

30These orders result in a total effective sentence of 18 months. 

31Upon your release, you will commence the Community Corrections Order which will be imposed in relation to Charges 1 and 2.

32The details of the Community Corrections Order are as follows.  Convictions will have been recorded as you will already have served sentences of imprisonment for the charges.  The Community Corrections Order will begin on the day of your release and will last for two years.  You will be under supervision and you must perform 100 hours of unpaid community work over six months.  That is a modest amount because I have taken into account the time that you will have spent in prison and the fact that you are working there as well.  You must take part in programs for treatment for drug and alcohol abuse and for any mental health issues to be assessed and treated.  Also, you must attend programs to address your offending.

33The writer of the report has stated that education programs that you might be interested in pursuing would be supported and monitored through intensive case management and supervision.  The writer has added that vocational development may also be addressed through community work options and offending behaviour programs.  Those last two matters would seem to be equally as important for you as the other programs because of the interest that you have expressed in being equipped for a better life in the future.  When you are released, you must report to the Warrnambool Corrections Office at 218 Lower Ground Floor, Koroit Street before 4 pm within two working days of your release.

34The prosecution seeks an order for a forensic sample of saliva to be obtained and you do not oppose that through your counsel.  I make that order and must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary. 

35The prosecution has also applied for orders for compensation in respect of the damaged cars as follows.  The sum of $3258.34 to be paid to RACV Insurance, and the sum of $10,658.59 to be paid to QBE Insurance.  Again, you do not oppose those orders being made and I make those orders.

36If you had pleaded not guilty to these charges I would have sentenced you to two years' imprisonment with no non-parole period pursuant to s.11 of the Sentencing Act and with a Community Corrections Order of three years.

37Is there anything I have neglected, Mr Steven?

38MR STEVEN:  In relation to the Community Corrections Order, Your Honour, is that in relation to each charge?

39HER HONOUR:  Charges 1 and 2.

40MR STEVEN:  Thank you.  That was the only query I had.

41HER HONOUR:  The Community Corrections Order is ready for signature and my associate will bring that to you.

42(Order signed and acknowledged.)

43Any other matters?

44COUNSEL:  No, Your Honour.

45HER HONOUR:  Thank you.  There are people who have come all the way from Warrnambool, are there?  I will remain on the Bench and you can say goodbye, you can say a few words to Mr Byrne before he is taken away, if you want to.  Thank you.

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