Director of Public Prosecutions v Byrnes
[2015] VCC 1765
•26 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-14-00739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALLANA BYRNES |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 November 2015 |
| DATE OF SENTENCE: | 26 November 2015 |
| CASE MAY BE CITED AS: | DPP v BYRNES |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1765 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty - intentionally cause injury – common assault- charges arise from a single transaction – psychosocial problems contributed to offending.
Sentence: Sentenced to an aggregate term of imprisonment of 206 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Piggott | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P Skehan | Greg Thomas Barristers & Solicitors |
HIS HONOUR:
1Allana Laura Byrnes, you pleaded guilty to one count of intentionally causing injury which carries a maximum penalty of ten years imprisonment and one count of common assault which carries a maximum penalty of five years imprisonment.
2The summary of the prosecution plea opening has been tendered and is marked Exhibit 8. It contains a summary of the facts which you agree are an accurate account of the circumstances of your offending. I do not propose to repeat much of what is in the summary of the prosecution plea opening, except for some of the relevant facts.
3As at 24 February 2013, you resided with your sister, the victim of your assaults, for a few weeks. On that day, your sister took her dogs for a walk to a beach at Seaford just before 7 pm. You accompanied her. On the way to the beach, you and your sister stopped at the Seaford Hotel where you drank two glasses of stout. You purchased a ten pack of Woodstock - which I understand to be a mixture of hard liquor and soft drink - for a young man who had unsuccessfully tried to buy alcohol at a Safeway supermarket. You, your sister and the young man walked to the beach at Seaford. You drank some of the alcohol you purchased for the young man.
4While you were on the beach, your sister noticed your behaviour change by the time you had consumed six cans of alcohol. Firstly, you abused an elderly man who was on the beach. Secondly, after going to the water, you returned and were heard by your sister to be swearing and saying bizarre things. Thirdly, you began screaming at your sister and you became aggressive towards her.
5Your attack upon your sister escalated. You fought her physically. She made attempts to defend herself and to fend you off. At one point, your sister was on her stomach on the beach. You scooped up a quantity of sand and pushed it into your sister's mouth. This constitutes the charge of common assault. Your sister managed to get away from you. She found her dogs, she bent down to clip the leashes onto the collars of her dogs. She was bending over and in a vulnerable position when you punched her in the face, splitting her lip. This constitutes the charge of intentionally cause injury.
6What I have just summarised is but a part of a transaction of abusive, aggressive and bizarre conduct on your part, but it is sufficient to summarise your offending.
7You commenced a trial on 16 March 2015 before a judge of this court and a jury. On 19 March 2015, the jury was discharged and a warrant was issued for your arrest. That occurred because you failed to appear on 18 and 19 March 2015. You have been held in custody since the execution of a warrant on 4 May 2015 which is now a period of 206 days.
8You were born on 26 October 1971. You are now 44 years of age. Your family circumstances can only be described as unfortunate. You have two sons who are 21 and 19 years of age, neither of them speak to you. You have three sisters and a brother. It would appear that you are estranged from them as well. You completed your high school certificate year. You have engaged in some employment, but according to what I understand of you, you have not worked much beyond the years between 18 and 29 years.
9I have read the report of Dr Cunningham, psychologist, dated 6 October 2011. After interviewing you when you were to face court on a number of very serious charges, he noted that you had a long history of alcohol abuse and subsequent illicit drug abuse. You describe using those substance to mask the difficulty you had in a relationship and as the result of the consequences of a sexual assault. Dr Cunningham concluded that you were suffering from depression and anxiety due to being a victim of domestic violence and from the sexual assault. Interestingly, he forecast that you had a medium to high risk of reoffending. That was very prophetic.
10You have a dreadful prior criminal history. It is difficult to understand how someone of your age can engage in serious misconduct of the kind which is evident in your prior criminal history. It appears to be consistent with someone with an uncontrolled drug habit. It hardly paints a picture of you being a person who has real prospects of rehabilitation, unless you free yourself of drug use, as you apparently have whilst in prison.
11The sentence I must impose on you must specifically deter you from engaging in violent conduct. That is not only the case because of what you did on this occasion, but because your criminal history shows that you are a person who is no stranger to violence. The sentence must also deter others who think that an insignificant sentence awaits them if they engage in similar conduct.
12Drinking an unacceptably large quantity of alcohol resulting in an unprovoked assault, such as that occasioned upon your sister, is conduct which must be denounced in the sternest terms. You have brought yourself into a category of offending where the community deserves to be protected from people like you. That of itself should send a strong message to you as to where you have found yourself.
13I have read the victim impact statements of your two sisters. They are very short. However, it is understandable that your sister has lost a level of enjoyment of life as a result of the unprovoked attack you made on her. She has been left with a sense of fear, fragility and vulnerability and has lost a sense of the safety she once enjoyed in her movements within her own community.
14There are a number of factors which I will take into account in moderating the sentence I must impose on you. Although you pleaded not guilty to all of the charges initially, you have pleaded guilty to these charges when such a plea was offered to you. You do have what appears to me to be psychosocial problems which need to be addressed and which are part of the reason why you engaged in this criminal offending.
15You have been in custody for a significant period of time, which I hope has had the salutary effect of bringing you to your senses. Your remand in custody has been on harsher terms than the conditions which would ordinarily be available to someone undergoing a sentence of imprisonment. You have also been subject to the well-understood prejudices and attention of other prisoners because you were initially charged with rape.
16Lastly, the two charges arise out of one transaction of offending. The authorities call on me to make the sentences mostly concurrent to recognise that they have arisen out of one transaction and occurred close in time. The assaults can be described as being at the lower end of seriousness, but your criminal history inevitably brings you into a different category when it comes to sentencing. I should add that the eloquent plea made on your behalf raises matters which have probably been put to courts before. Those matters are now less persuasive because you do not seem to have learnt from your previous court appearances.
17In any event, I am of the opinion that you are deserving of a sentence of imprisonment, but I am not of the opinion that it should exceed the time you have served. I think over six months' imprisonment is within the range of what a just sentence is in your case and perhaps a little more than what I would have sentenced you to, had you been able to enter a plea of guilty much earlier.
18I would ask you to stand, please. On the charges of common assault and intentionally cause injury, I sentence you to an aggregate term of imprisonment of 206 days. I order that the time you have been in custody of 206 days be reckoned as part of the sentence. In other words, that you be sentenced to time served. I order that this be entered into the court records.
19To the extent that I am obliged to do the following, and despite your late plea of guilty, I would have sentenced you to 12 months' imprisonment with a minimum of nine months.
20If there is nothing else, I will now sign the order so that you can be dealt with by the relevant authorities. Firstly you, Ms Piggott. Is there anything else?
21MS PIGGOTT: No, Your Honour, there isn't. Thank you.
22HIS HONOUR: Mr Skehan?
23MR SKEHAN: No, Your Honour.
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HIS HONOUR: All right. As soon as that order is signed, I will ensure that it is transmitted to the relevant authorities. But I think in the meantime
Ms Byrnes needs to be removed. If you will do that, please, and I will now adjourn the court. Thank you.
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