Director of Public Prosecutions v Bysouth

[2019] VCC 1129

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00800

DIRECTOR OF PUBLIC PROSECUTIONS

v

TETIYA BYSOUTH

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Bendigo
DATE OF HEARING:	19 July 2019
DATE OF SENTENCE:	22 July 2019
CASE MAY BE CITED AS:	DPP v Bysouth
MEDIUM NEUTRAL CITATION:	[2019] VCC 1129

REASONS FOR SENTENCE
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Subject: Armed robbery
Catchwords: 18 year old aboriginal offender – limited criminal history – early guilty plea – strong family and community support – rehabilitation important sentencing consideration
Legislation Cited:
Cases Cited:
Sentence: 207 days imprisonment combined with 2 year community correction order – PSD 207 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Docherty Legal

HIS HONOUR:

1Tetiya Bysouth, you have pleaded guilty to one count of armed robbery and one count of threat to inflict serious injury. 

2You have also pleaded guilty to summary charges of committing an indictable offence whilst on bail and contravening a bail curfew condition. 

3The circumstances of your offending as set out in the prosecution opening for plea, which was Exhibit A.  You knew a man named Shaun Harris and, in summary, on 20 December 2018, around 5 am, you went to his unit.  When he opened the door you produced a knife, held it to his throat and demanded the keys to his car.  You also demanded money.  When he gave you the car keys and $50 you left and drove off in his car.  That conduct constitutes the offence of armed robbery.

4Later that morning, Harris messaged you by Facebook wanting to know where his car was.  In the evening, believing Harris had reported your armed robbery to police, you replied, 'You spoke to the fucken jacks, you dog'.  He wrote you were ‘going to get done for the armed robbery'.  And you responded with, 'You're going to get your tongue cut out of your mouth'.  And that response is the conduct that constitutes the offence of threat to inflict serious injury.

5In later messages you told him you would return his car for $500. 

6On 22 December you returned to his unit, where you told him you would return his car for $600.  He told you to, 'Fuck off', and he said he was calling the police.  He reported you to police on 23 December 2018 and, on 27 December 2018, you went to Bendigo police station and surrendered yourself into police custody.  When police interviewed you, you exercised your right to remain silent. 

7You committed these offences whilst you were on bail and, at the time you committed them, you contravened a bail curfew condition.

8On 19 November 2018 you were charged with offences relating to a stolen motor car and bailed to appear at Bendigo Magistrates' Court at a later date.

9You have a limited criminal history.  On 22 January 2018, you appeared in the Children's Court at Bendigo, for dishonesty offences, including aggravated burglary and assaulting police, and for this offending you were released on an accountable undertaking. 

10I turn to your personal circumstances, which are set out in the defence outline of plea submissions (Exhibit 1). 

11You were born on 27 July 2000 and will turn 19 next Saturday.  You are a Barkindji Wiradjuri man and your family maintain strong connection to your rich cultural heritage.  You were supported in court by your mother and your sister and a brother.  Your mother is a Koori education officer at Bendigo and your father is a well-being officer at the Mildura Aboriginal Cooperative.  You, yourself, are a member of the Bendigo and District Aboriginal Cooperative and you were involved as a mentor for disengaged children at weekly youth group meetings, until you went off the rails, as your counsel, Mr Lowy described it.

12You left school at the end of Year 8 and have done labouring work ever since.  You are a very talented footballer and narrowly missed selection for a national team.  While you were high achieving, you felt overwhelmed by the pressure of elite sport and began using drugs.  It is in the context of methamphetamine use that this offending occurred.  You have been drug abstinent during your 207 days of remand custody. 

13Mr Lowy relied on the following factors in mitigation of penalty: your youth; your early guilty plea; your background and culture; and your strong family and community support.  In that regard I note upon your release from prison, you will return to live with your mother, your uncle will employ you in his concreting business and BDAC will help you with alcohol and other drug counselling and mentoring.  A letter to that effect from Jeffrey West, BDAC Program Manager, was received as Exhibit 2.

14As well, your parents strongly believe you must reconnect with your community and get back on country. 

15Mr Lowy submitted, provided you can remain drug free, your prospects of rehabilitation are good, and the interests of the community, and you, would be best served by a sentence which enabled your immediate release on an appropriately conditioned community correction order. 

16Mr Cordy, who appeared for the prosecution submitted, having regard to your age and antecedents and the other factors your counsel relied on to mitigate penalty, a term of imprisonment, equivalent to the time you have spent in custody to date, combined with a community correction order would be sufficient to reflect the gravity of your offending. 

17At the conclusion of submissions, I indicated I would release you on such a sentence provided you were found suitable for a community correction order.  I have had you assessed and you have been found suitable.

18Armed robbery is a very serious offence, not only because it deprives people of their property, but also it puts them in fear for their safety.  Yours was a frightening attack on someone you knew, at his home, where he was entitled to feel safe. 

19I have read Mr Smith's victim impact statement, which was Exhibit B.  He said he has since moved, because he was in fear living in the unit.  He has withdrawn with friends and is vigilant when he is out.  He has suffered from sleeplessness, anxiety and depression. 

20It is an aggravating feature of your offending that you were on bail, when you committed these offences. 

21Nevertheless, taking into account the circumstances of your offending, including the harm you caused Mr Harris, and your personal circumstances, I am satisfied a combination sentence, incorporating a term of imprisonment equal to the time you have served, meets both the punitive and rehabilitative objectives of sentencing. 

22Please stand, Mr Bysouth.

23On the charges of armed robbery and threat to cause serious injury, you are convicted and sentenced to 207 days' imprisonment and upon your release, today, you will commence a community correction order for a period of two years. 

24I declare you have served 207 days by way of pre-sentence detention. 

25On the summary charges of committing an indictable offence while on bail, and breach of a curfew condition, taking into account the sentences I have imposed for the indictable offences, which constitutes substantially the same conduct, you are convicted of each of those summary charges and discharged.

26In relation to the community correction order, in addition to the core conditions, you will be required to attend for supervision to complete offender risk reduction programs and to complete alcohol and other drug assessment and treatment.  In addition, so that the court can keep an eye on you, you will be required to attend at this court for judicial monitoring on 18 December 2019 at 9.30 am, when I will have received a report as to your progress on your community correction order.

27Taking into account the punitive aspect of the time you have spent in adult gaol, I have not included community work hours in the order

28In order for me to make the order, the community correction order, it will require your consent and you will be asked to sign an acknowledgement that you understand the conditions of the order, the consequences of breaching it, and if you consent to the order being made, I will make it. 

29I will have the terms of the order prepared now and then I will give Mr Lowy an opportunity to speak with you, to explain the conditions and the effects of them.  Take a seat for a moment. 

30While that is being done, I will make the disposal order in the terms of the draft order, which the prosecution provided to the court.  I take it there is no objection to that, Mr Lowy, is there?

31MR LOWY:  No objection, Your Honour.

32HIS HONOUR:  I did not ask you for submissions on the application for the forensic sample.

33MR LOWY:  It is not opposed, Your Honour.

34HIS HONOUR: Thank you. I am satisfied, Mr Bysouth, that the seriousness of your offending warrants the taking of a forensic sample and accordingly, pursuant to s.464ZF of the Crimes Act, I order you provide a sample of your saliva by a Buccal swab.  I must inform you if you refuse to provide the sample, police may use reasonable force to obtain one from you.

35I will have the order handed to you, Mr Lowy, and ask you to approach the dock and ‑ ‑ ‑

36MR LOWY:  Thank you, Your Honour.

37HIS HONOUR:  ‑ ‑ ‑ explain to Mr Bysouth the terms.

38MR LOWY:  Thank you, Your Honour.

39MR LOWY:  That has been signed.

40HIS HONOUR:  I note you have signed the order.  Do you acknowledge that you understand the effects and conditions of it?

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR: Thank you. I will make the order. Having made the order, you will be required to attend at the Bendigo office of Community Corrections Services within two working days and, the last thing, Mr Bysouth, I make a declaration, made under s.6AAA of the Sentencing Act, that but for your plea of guilty, I would have imposed a sentence of two years six months' imprisonment and fixed a non-parole period of one year and six months. 

43Mr Lowy and Mr Cordy, thank you for your assistance.

44MR LOWY:  Thank you, Your Honour.

45MR CORDY:  Thanks, Your Honour.

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