Director of Public Prosecutions v Byrnes
[2017] VCC 843
•22 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01004
Indictment H10128244
Case No. CR-16-02239
Indictment C1607085
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID GREGORY BYRNES |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May and 6 June 2017 | |
DATE OF SENTENCE: | 22 June 2017 | |
CASE MAY BE CITED AS: | DPP v Byrnes | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 843 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Churchill | |
| For the Accused | Mr I. Polak |
HER HONOUR:
1 David Byrnes, you have pleaded guilty to one charge of possession of child pornography (Charge 1 on Indictment H10128244), one charge of failing to comply with a Supervision Order (Charge 1 on Indictment C1607085) and Summary Charge 8 of failing to comply with a Supervision Order. Indictment H10128244 is on file CR‑17‑01004. Indictment C1607085 and Summary Charge 8 are both on file CR‑16‑02239.
2 The circumstances of your offending and the background to your offending are set out in detail in the Summary of Prosecution Opening, which was tendered as Exhibit A. It is important to note that there is one aspect of that Summary which was later conceded by the prosecution to be incorrect. Paragraphs 24, 25 and 26 of that summary say that s10AB of the Sentencing Act 1991 applies to the consideration of any sentence imposed on Indictment C1607085. The prosecution later advised that the effect of the transitional provisions is that that provision does not apply in your case. The proceeding in respect of Summary Charge 8 was heard in the Court’s summary jurisdiction. The defence did not seek summary jurisdiction in respect of the two charges charged on indictment.
3 The circumstances of your offending in brief are as follows. On 8 August 2016, a Samsung mobile phone was seized from you, along with a number of other electronic devices, for an audit pursuant to Condition 5.1 of the Supervision Order which was initially imposed by me on 21 February 2012 pursuant to s9 of the Serious Sex Offenders (Detention and Supervision) Act 2009. That Supervision Order has been reviewed by me and the remaining period of the order is until 11 May 2020. Analysis of the phone showed that it contained child exploitation images. This is the material which is the subject of Charge 1 of knowingly possessing child pornography on Indictment H10128244.
4 The material was categorised according to the usual categories of child exploitation material. There were 17 child exploitation material images. Two of these were animated or virtual. Five of the pictures were Category 3, which includes the portrayal of adult involvement with a child but without penetration. Eight of the images showed no active sexual activity.
5 By committing the offence of knowingly possess child pornography, you breached Condition 3.1 of your Supervision Order (Charge 1 on Indictment C1607085).
6 Summary Charge 8 relates to contact you had with a child under the age of 16 between 7 and 12 December 2016. The child was 15 years old. You initiated contact with the child via a Facebook friend request and then communicated with that child via Facebook Messenger in an effort to contact another child, who was the daughter of your then partner. You were aware that your partner was not allowed to contact his daughter. It is accepted by the prosecution that your contact with the 15 year old child was not for any sexual purpose. By having contact with a child under the age of 16, you were in breach of Condition 4.12 of your Supervision Order.
7 You were arrested and remanded in custody on 12 December 2016. These proceedings have had a complicated history between the Magistrates’ Court and the County Court. Ultimately, there were a number of committal mentions in order for the matter to be resolved. Finally, the matter was listed for a plea on 31 May 2017. You have spent 192 days in custody on remand in respect of these charges.
8 The maximum penalty for knowingly possess child pornography is ten years’ imprisonment. The maximum penalty for breach of a Supervision Order charged on indictment is five years’ imprisonment. The maximum penalty I can impose in the summary jurisdiction for breach of a Supervision Order is two years’ imprisonment.
9 In sentencing you, I have taken into account your personal circumstances. You are now 31 years old. You have admitted a prior criminal history. Of particular relevance are three previous breaches of a Supervision Order. In 2012, you absconded twice from Corella Place. On 16 September 2012, you were convicted and sentenced to two months’ imprisonment. On 2 August 2013, you were convicted and sentenced to six months’ imprisonment. You again absconded on 21 December 2015. On 2 March 2016, you were convicted and sentenced to 71 days’ imprisonment in respect of two charges of breaching a Supervision Order. You had been in custody for that period of time. I said at that time that you would have been sentenced to 250 days’ imprisonment but I took into account 189 days of 459 days you had spent on remand in respect of charges on which ultimately you were found not guilty. That remand commenced on 4 March 2014.
10 Your personal circumstances are described in the neuropsychological report of Dr Nathan Popp dated 8 November 2011 (Exhibit 1). This report has some age to it but it sets out your background and also the assessment of matters including your intellectual disability. Those are matters which are permanent factors for you. Your counsel did not seek to add anything to that report, but submitted that your moderate intellectual disability would once again attract the application of Verdins principles.
11 You had a chaotic and dysfunctional upbringing. Dr Popp’s report refers to other reports which made reference to intergenerational alcoholism, as both your parents had alcohol problems. Your father had gambling problems, a history of depression and a reported suicide attempt. You grew up in New South Wales. You say that you were not regular in your attendance at school, but you are able to read and write. You were placed in foster care when you were eight. At 17, you left your housing with the Department of Human Services and started living with friends. You started using illegal drugs when you were about ten years old. You were using marijuana on a daily basis and that continued for most of your life prior to your incarceration. You also abused other illegal drugs.
12 Dr Popp says:
“Considering Mr Byrnes’ history, he demonstrates a classical pathway towards the development of an antisocial personality disorder. No doubt his socio-economic background placed him at a disadvantage, as did his [Attention Deficit Hyperactive Disorder] and the development of [Oppositional Defiance Disorder]. Both the ADHD and ODD were precursors to the development of the [Conduct Disorder]. Dispositional risk factors for this also include his difficult childhood temperament, impulsivity, low verbal intelligence and academic under-achievement. Contextual factors also include his exposure to poor quality care as a child, parental psychopathology, inadequate parental supervision and discipline, lack of parental involvement and neglect. His impoverished living conditions no doubt made it more difficult, as did his association and connection with a deviant peer group. Mr Byrnes’ polysubstance abuse further entrenched his psychopathology. Considering the number of risk factors present, the ultimate expression of an anti-social personality disorder seems to have been inevitable.”
13 Dr Popp says you have marked cognitive difficulties consistent with a diagnosis of mild intellectual disability. Dr Popp considers that you likely have underlying frontal lobe dysfunction, probably contributed to by your history of polysubstance abuse, as well as your intellectual disability. He says that this has a significant impact on your behaviour and emotional functioning. Dr Popp says:
“With respect to Mr Byrnes, his anti-social nature is reflective of an underlying failure to conform to societal norms alongside a set of behavioural patterns involving the disregard and violation of the rights of others. Such pattern traits are enduring and largely automatic. The frontal lobes are required to have a major goal in inhibiting these automatic behavioural traits. Given Mr Byrnes’ underlying executive and frontal lobe dysfunction alongside his problems developing new behavioural patterns (despite real time feedback) he is likely to have difficulties changing his behaviour in a major way. He may be able to demonstrate some prosocial behaviours for short periods although if he is left to his own devices, he is likely to gravitate back towards his underlying anti-social traits.”
14 Dr Popp says you have an increased risk of lapsing in following social rules because of your suboptimal self-regulation and your tendency to act without fully considering the consequences. Dr Popp says that your executive dysfunction will limit your ability to inhibit undesirable or criminal behaviour.
15 Your history of offending in respect to the Supervision Order, including the more recent offending, illustrates the accuracy of that opinion. It appears that despite having it explained to you clearly what you are not able to do, you continue to break the rules that apply to you. It appears likely that, due to your functional difficulties, you are not able to regulate your behaviour in order to comply with the rules. Clearly, Verdins principles have application in respect of your moral culpability. Against that is the fact that your prospects of rehabilitation in terms of compliance with the Supervision Order are so low as to be negligible given your functional difficulties and your continued offending. Community protection must have a significant part to play in sentencing you.
16 It is of particular concern that you had images of child pornography on your phone. The prosecutor accepted that the volume of images was low and involved a low number of children. There were children depicted under the age of ten, but it appears that you had not had the material for any length of time and that you did not attempt to hide it. You were not involved in the distribution or selling of the material or any breach of trust. The prosecutor conceded that the objective gravity of the offending tends towards the lower end of the offending spectrum for this type of offending. I agree with that assessment. It remains disturbing, given the reasons you were placed on a Supervision Order which involved sexual offending against a child, that you have such images on your phone. This is a very serious breach of the Supervision Order that has been imposed on you.
17 It is also of considerable concern that you contacted a child under 16, which you know you are not allowed to do. I accept that the contact was not for sexual reasons but nevertheless it is very alarming that you contacted a 15 year old child when you know that the Supervision Order means that you are not allowed to contact children under 16 unless you get permission from the Parole Board. It appears once again that, despite the rules being clear, you are not able to control your own behaviour if you decide for some reason or another you wish to go ahead with the conduct. There needs to be severe consequences to discourage you and to punish you but there also needs to be a significant emphasis in sentencing on community protection.
18 Your counsel submitted and I accept that this offending was minor compared to your index offences. He submitted that it should be taken into account that you have spent 289 days in custody which has not been taken into account in any sentence, together with the 170 days’ pre-sentence detention in respect of these matters. The prosecutor agreed with those calculations. Your counsel said that you were in protection in custody and that that ought to be taken into account as making your time in prison more difficult for you.
19 I have taken into account in mitigation of sentence your pleas of guilty, all Verdins principles and that imprisonment will be more difficult because you are in protection. I am not satisfied that you are remorseful for your offending in the sense of genuine remorse.
20 In respect of the charge of possession of child pornography (Charge 1 on Indictment H10128244), you must be sentenced as a serious sexual offender. Part 2A of the Sentencing Act 1991 applies, and I must regard the protection of the community as the principal purpose for which the sentence should be imposed and may impose a sentence longer than that which is proportionate to the gravity of the offence. The prosecution does not seek a disproportionate sentence in this case. I do not intend to impose a disproportionate sentence in respect of the possession of child pornography charge but I consider that any disproportion would be justified because of the importance of community protection in sentencing you. The presumption for cumulation in that Part also applies in respect of the charge on Indictment H10128244.
21 Pursuant to s34(1)(c) of the Sex Offenders Registration Act 2004, on your conviction in respect of the charge of possession of child pornography, because of your prior offending for which you were initially sentenced on 19 November 2004 and for which you were resentenced on 9 March 2005 after a successful prosecution appeal, you must be subject to the mandatory registration and reporting requirements of that Act for the period of life.
22 David Byrnes, you are sentenced as follows
23 Charge 1 of failing to comply with a Supervision Order (Indictment C1607085 file CR-16-02239) you are convicted and sentenced to nine months' imprisonment.
24 Summary Charge 8 of failing to comply with a Supervision Order you are convicted and sentenced to three months imprisonment
25 The sentences are to be served concurrently. The total effective sentence is nine months' imprisonment. But for your plea of guilty I would have sentenced you to 12 months' imprisonment.
26 On Charge 1 of possession of child pornography (Indictment H10128244 file CR17-01004) you are convicted and sentenced to six months' imprisonment. On this charge you are sentenced as a serious sexual offender. But for your plea of guilty I would have sentenced you to eight months' imprisonment.
27 The presumption of cumulation applies; however I have decided not to make this sentence or, for that matter, the sentence on Summary Charge 8 cumulative and have moderated the sentences to a degree in order to take into account on a Renzella basis the 289 days you have spent on remand which has not yet been taken into account. The sentences are all to be served concurrently.
28 I declare that you have served 192 days of the sentence on file CR-16-02239 and the sentence on file CR-17-01004 by way of presentence detention to be deducted administratively.
29 Application was made for forfeiture of a number of items. The making of those orders was not opposed and the forfeiture orders are made.
30 Mr Byrnes, I have explained your requirements under the Sex Offenders Registration Act and we have faxed a document through. Has that document yet arrived at where you are?
31 OFFENDER: I'm just trying to find out now, Your Honour.
32 VOICE (from video link): They've just gone to try and track it down.
33 HER HONOUR: Thank you very much. We will just wait for a minute, thank you.
34 As far as counsel are concerned, is there anything you want me to repeat or clarify?
35 MR POLAK: Could you please clarify the Renzella aspect?
36 HER HONOUR: Yes. The 289 days have all been taken into account in terms of moderation of sentence and in not making any cumulation of sentence, so it is not a day for day situation but I have taken that amount into account.
37 OFFENDER: Got that paperwork now, Your Honour.
38 HER HONOUR: Thank you very much, Mr Byrnes. If that paperwork could be given to you. If you go to the last page - so hopefully it is all Sex Offenders Registration and there is a last page, if the officer can assist you, where it says that you acknowledge receipt of that documentation.
39 OFFENDER: Yes.
40 HER HONOUR: So what I would ask you to do is just to sign that. You should see my signature on the other paperwork somewhere, but just that last page, just to say you have received it. You do not have to say you agree with it or anything, it is really just to say you have got it and could you sign that document.
41 OFFENDER: I've signed that, Your Honour.
42 HER HONOUR: Thank you. Does it need to be dated?
43 OFFENDER: No, I've got that, Your Honour.
44 HER HONOUR: Thank you, and if you could give that page to the officer, the officer will be able to fax it back to us in court, I think. Is that all right, Officer?
45 VOICE (from video link): Yes, Your Honour, that's fine. Does David keep the rest?
46 HER HONOUR: He does. He gets to keep the rest of it, that is for him and his information. If you need to ask any questions, Mr Byrnes, you can contact Legal Aid or your solicitors and find out anything else you need to find out about it, otherwise I think we are right and we are finished and thank you very much for your help, the Corrections people. Yes, Mr Polak?
47 MR POLAK: If you could ask him if he is able to contact Greg Thomas today. I'm not sure if he's got funding - or make a phone call.
48 HER HONOUR: Right. Mr Byrnes, are you able to call Mr Thomas today?
49 OFFENDER: Yes, Your Honour.
50 HER HONOUR: All right. Mr Polak is asking you if you would be able to ring Mr Thomas today.
51 OFFENDER: Yes, no problem.
52 HER HONOUR: All right, thank you.
53 MR POLAK: Thank you, Your Honour.
54 HER HONOUR: The effect of what I have done is that you have got nine months less 192 days, so nine months would be 270 days - - -
55 MS CHURCHILL: I think it is six months and ten days from what I understand.
56 HER HONOUR: No, but the nine-month sentence - - -
57 MS CHURCHILL: Yes, but the 179 days is about six months.
58 HER HONOUR: So less 192.
59 MS CHURCHILL: Ninety-two, sorry, we're all getting that wrong, is about six months, ten days.
60 HER HONOUR: All right. That doesn't sound right to me, sorry.
61 MS CHURCHILL: Yes, I think that's right, Your Honour.
62 HER HONOUR: So it would be 270 less 192, is 78 days. So it's a couple of months.
63 MS CHURCHILL: Yes, he's got about two and a bit months, yes.
64 HER HONOUR: That's right, we are in agreement. Mr Byrnes, I think you have got about two and a half months to go, about another 78 days in custody, according to our calculations and my calculations. That is about what I intended, about another 78 days. After that I assume you will be taken back to Corella Place but that is a matter for the authorities under the Supervision Order, but because of everything that has been taken into account you have got about another 78 days to do. Please could you ring Mr Thomas today.
65 OFFENDER: Yes.
66 HER HONOUR: Thank you very much and thank you for your assistance and the assistance of the officer there in respect of the paperwork, and we will now cut the link.
67 OFFENDER: Thank you.
68 HER HONOUR: I will just sign these forfeiture orders so that we can give you those. Thank you very much, Ms Churchill and Mr Polak, you are excused.
69 COUNSEL: Thank you, Your Honour.
70 HER HONOUR: Thank you very much, and the forfeiture orders have been done. Thank you.
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