Director of Public Prosecutions v Pyers

[2017] VCC 1310

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 17-00061

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT PYERS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	11 September 2017
CASE MAY BE CITED AS:	DPP v Pyers
MEDIUM NEUTRAL CITATION:	[2017] VCC 1310

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr A. Marshall
For the Director of Public Prosecutions	Mr P. Bourke

HIS HONOUR:

1Robert Leslie Pyers, you have pleaded guilty to one charge of aggravated burglary and two summary charges of unlawful assault.  The facts of the matter are set out in the prosecution opening, Exhibit 1 on the plea, they are not disputed by your counsel.  You have admitted a limited criminal history, I will not repeat the facts in any detail, any reader of these reasons can refer to Exhibit 1 to place the sentences in their factual context.

2It is sufficient to say on 22 July 2016, you entered the house of Ms Amber using an axe handle to break a glass pane in the wooden door.  You then unlocked the door, you walked in, in possession of the wooden axe handle, yelling threatening words at another occupant, Mr MacDonald.  Ms Amber went to her bedroom, you opened the door whilst she was in her bedroom and entered the house; walked towards MacDonald, you yelled at him, said you wanted to kill him.  You then swung an axe handle at him.  Believing you were going to hit MacDonald, Ms Amber walked across the path of the wooden handle and was struck on the right cheek bone near the right eye, which resulted in bruising.  She told you that she had been hit in the face and you backed off and left through the front door.  You were interviewed by police on 22 July 2016.

3The history of the matter which is set out in the chronology at p.5 of Exhibit 1, although not the earliest plea, it could be described as an early plea and will be given the appropriate discount.  Your counsel filed written submissions and also a neuropsychological report from Dr Michelle Morandin, dated 8 March 2017.

4Your counsel made oral submissions as well.  In mitigation he relied on; (1), your plea of guilty; (2), your personal history as set out in his outline and also in the neuropsychological report; (3), your involvement in a high speed car accident in 2008, from which you received a severe traumatic brain injury.  In the neuropsychological report the effects of that injury upon your lifestyle and at p.4 there are problems with your speech, memory and general thinking.

5Various cognitive functioning tests were carried out and your premorbid cognitive functioning was estimated to be within the average range.  The doctor concluded that you suffered a severe TBI from the moto accident - vehicle - in October 2008.  Your own issues with headache, fatigue, cognition, mood and social interactions were reported.

6You are in the borderline to high average range of the various tests that were conducted upon you.  In discussing the offending you seemed to not want to accept responsibility for it, as was discussed during the course of the plea.  At paragraph 12 of her report, Dr Morandin said you felt misrepresented and it was unclear on your account whether in the doctor's opinion that represented genuine misunderstanding of the situation that occurred, loss of recall or fabrication of events.  Given that you have pleaded guilty to the charges it is difficult to understand how you could maintain there was another version and it goes to the issue of whether you are genuinely remorseful for what occurred.

7However, as there are three possible options set out by the doctor and because of your brain injury problems, I am not prepared to make a finding that you do not have remorse or that you were fabricating your recall to the doctor.

8(4), you have a very limited prior criminal history; (5), your counsel pointed out that the injuries were minor and you exited once you realised what had occurred.  

9He put to me that I should consider imposing a straight sentence of the time that you have already served which is some 416 days.  The prosecutor obtained instructions that the time served was not outside the range but submitted that a non-parole period should be set out and not a straight sentence.

10In sentencing you I am required to balance the interests of the community in denouncing criminal conduct, in the interests of the community to seek to ensure, as far as possible, offenders are rehabilitated into society.  I express my denunciation of the behaviour.  People in the community are sick and tired of people breaking into other people's houses with weapons and threatening them and abusing them.  It has almost reached epidemic proportions and simply has to stop.  The court sentences have to reflect and send a message to other people in the community that it has to stop and that is called general deterrence.

11Of course you have to be punished and I have to consider specific deterrence, that is to try to get it into your mind not to do that again and although you have a limited criminal history. I certainly do not want you to think that once you are out you can start doing this sort of thing again.  I must also take into account general rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, and I have taken all those factors into account.

12On the sentence of aggravated burglary, I sentence you to a term of imprisonment of 420 days, which means you get out in four days.  On each of the unlawful assault charges, I sentence you to a term of imprisonment of one month, each of them to run concurrent with each other and also with the sentence of 420 days.

13I am convinced that you should be on parole.  I think for the reason that Mr Bourke pointed out, it is a small community and you might need some monitoring.  So the bottom is the 420 days and the top of it will be 30 months.  So it is 30 months with 420 days. 

14I declare that, pursuant to s.6AAA of the Sentencing Act that, if you had gone before a jury after a plea of not guilty and you were convicted, you would have received a sentence in the order of five years with a non-parole period of three.  I declare the period of time of 416 days that you have already served to be reckoned as part of the term of imprisonment that I have just imposed.  Was there a 464 order?

15MR BOURKE:  Yes, Your Honour, sought.

16HIS HONOUR:  I have not signed the disposal order yet, either.  So you have four more days.

17MR BOURKE:  Your Honour, I'm just checking the PSD, I'm sorry.

18HIS HONOUR:  All right.

19MR MARSHALL:  Sorry, Your Honour, I'd ‑ ‑ ‑

20MR BOURKE:  Four-hundred and sixteens correct, Your Honour.

21HIS HONOUR:  All right, thank you.  I'm making an order - will this be for the Ballarat police station?  No one's going to go out in the next four days, are they, to the gaol?

22MR BOURKE:  No, Your Honour, I wouldn't have thought so,.

23HIS HONOUR:  All right.

24MR BOURKE:  The sentence Your Honour's imposed is a 30 month head sentence with a non-parole of 420 days.  What that means is Mr Pyers is eligible for parole in four days.

25HIS HONOUR:  Yes.

26MR BOURKE:  That does not mean he'll be released in four days.

27HIS HONOUR:  Right, of course, he's got to apply to the parole board.

28MR BOURKE:  In my submission the 464 would be an in custody version.

29HIS HONOUR:  All right, how longs the parole board take, does anyone know?

30MR BOURKE:  I don't, Your Honour.

31HIS HONOUR:  Mr Marshall?  So you better get cracking at the parole board, Mr Pyers.

32OFFENDER:  So four days ‑ ‑ ‑

33HIS HONOUR:  As soon as you get back put in an application for parole.

34OFFENDER:  That - that's going to take a long time, I think.

35HIS HONOUR:  I don't know.  It will if you don't put an application in straightaway and try and speed it up.

36OFFENDER:  That - that could possibly - I'd be at the end of the year.  Parole just doesn't happen overnight, sir, like it's ‑ ‑ ‑

37HIS HONOUR:  Do you know, Mr Bourke ‑ ‑ ‑

38MR BOURKE:  I don't, Your Honour.

39HIS HONOUR:  Mr Marshall?

40OFFENDER:  That - that takes a long time, I've ‑ ‑ ‑

41HIS HONOUR:  Well that's an important factor that I haven't counted in.  Of course, I'm not allowed to take into account whether he gets parole or not.

42MR BOURKE:  No.

43HIS HONOUR:  As a matter of law.  Well, can I make a recommendation to the parole board that it be dealt with speedily?

44MR BOURKE:  I don't know the answer to that, Your Honour.  I’m not troubled by Your Honour making such a comment.

45HIS HONOUR:  I make recommendations that young offenders serve their time, prison sentence, in youth custody.

46MR BOURKE:  Yes.

47HIS HONOUR:  Youth Justice.  So there's no reason why I can't do that.

48MR BOURKE:  I don't know of any reason why you can't, I'm not saying you can't.

49HIS HONOUR:  Mr Marshall.

50MR MARSHALL:  There's no reason why you can't, Your Honour, what affect it has, of course, I can't say.

51HIS HONOUR: All right. I won't be ringing Mr Cussins up, I don't think that would be go beyond my powers but I'm not sure. Well, I'll make a recommendation that your parole be dealt with as speedily as possible, all right? Thank you. Making an order for the taking of a forensic sample. Having considered the circumstances of the offence the order's justified because of the seriousness of the offence, the order's not opposed. Someone will come around and take a forensic sample from you, if you decide to oppose it, police can use reasonable force to do so. I make an order pursuant to s.77(1) of the Confiscation Act, in the terms of the order that I sign.

52OFFENDER:  So can parole be contacted, like, now.

53HIS HONOUR:  No, you have to put in an application for parole and the best I can do is make a recommendation that your parole be considered at the earliest possible opportunity.

54OFFENDER:  That - that will be months, I ‑ ‑ ‑

55HIS HONOUR:  Well, I don't know.  As a matter of law I can't interfere or take into account whether you get parole or not, all right.  I signed the disposal order in terms of the order that I have - just take a seat for a moment.  That recommendation will go on the order that I sign so that's how it will get to the prison authorities.  Here's that other order.  I haven't forgotten anything else, have I?

56MR BOURKE:  No, Your Honour.

57HIS HONOUR:  No.  All right ‑ ‑ ‑

58MR MARSHALL:  Was there a 6AAA?

59HIS HONOUR:  Yes, I did that.

60MR MARSHALL:  Yes, that's all right.

61HIS HONOUR:  All right, take Mr Pyers out, thanks.

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