Director of Public Prosecutions v Robinson
[2021] VCC 730
•3 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. CR-21-00855
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYCE ROBINSON |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 28 June 2021 | |
DATE OF SENTENCE: | 3 June 2021 | |
CASE MAY BE CITED AS: | DPP v Robinson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 730 | |
REASONS FOR SENTENCE
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Subject:BREACH OF A SUPERVISION ORDER
Catchwords: Breach of a restrictive condition – one summary charge of unlawful assault – third breach of a supervision order
Legislation Cited: Serious Offenders Act2018 (Vic); Summary Offences Act 1966 (Vic); Sentencing Act 1991 (Vic)
Sentence: 8 months for breach and 2 months for unlawful assault to be served concurrently.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Locke | Office of Public Prosecutions |
| For the Accused | Ms N. Allison Ms J. Kennedy | Leanne Warren & Associates |
HIS HONOUR:
1Mr Robinson is charged contrary to s169(1) of the Serious Offenders Act 2018. This is an indictable offence. There was also a referred charge contrary to s23 of the Summary Offences Act 1966. Both charges arise out of the same factual circumstances.
2Before proceeding to set out the factual circumstances of the offending it is necessary to note that on 17 July 2020 a supervision order in respect of Mr Robinson was reviewed and affirmed. Specifically that supervision order imposed condition 4.8 which was in the following terms:
Bryce William Robinson, you must not engage in any behaviour or conduct that threatens the safety of any person (including Bryce William Robinson).
The relevant offending
3Turning to the relevant offending, the summary of the prosecution opening was read to the court and tendered as Exhibit P1. Mr Robinson accepted that this was an accurate record of the offending. It records:
On 9 April 2021 approximately at 8.34 pm Mr Robinson approached two DFATS staff members (Gajewski and Lesa) in an office where they were conducting a handover session. Mr Robinson said he was there to retrieve his television remote, which he said he had been given approval for. Gajewski said he would need to check with management regarding this request. Management told Gajewski that the request could not be dealt with at night and that further enquiries would need to be made the following day during business hours. Gajewski told Mr Robertson what management had said and the TV remote could not be returned. Mr Robertson immediately became verbally aggressive and emotional and threw a cup he was holding directly at Gajewski. Mr Robinson then approached Gajewski and threw a punch with a clenched right fist, connecting with the left side of Gajewski's jaw.
After reporting the incident to management Gajewski and Lesa attended Mr Robinson's room to speak with him and to attempt to calm him down. Mr Robinson threw a cup at Gajewski and Lesa but it missed them. He then slammed the door shut while verbally abusing the staff. Inside his room Mr Robinson smashed his TV by repeatedly picking it up and throwing it to the ground and into the walls before opening his door and throwing it into the hallway where Gajewski and Lesa were waiting. Mr Robertson picked up a shard of the broken TV and began self-harming by cutting his arm with the shard.
4No victim impact statement was provided by Gajewski. No medical report was tendered as to the injury sustained by Gajewski. The prosecution summary noted, and it was accepted by Mr Robinson, that Gajewski had to have three broken teeth surgically removed and that the blow produced, 'Quite serious trauma'.
5The accused has admitted his prior offending.
6Summary jurisdiction was sought in relation to the indictable offence, was consented to and granted. Exercising summary jurisdiction, the court can impose a sentence of the maximum of two years for the s169 charge. In respect of the summary offence charge a maximum of three months can be imposed. I note that the Serious Offenders Act categorises the breach of a restrictive condition, such as the one set out at 4.8 above, mandates a term of imprisonment of no less than 12 months. However, where the court finds pursuant to s10A of the Sentencing Act that a special reason exists the court is not bound to impose a term of imprisonment of no less than 12 months but rather is at large in terms of sentencing discretion. Here, it is relevant to note that Mr Robinson has a mild intellectual disability and a borderline personality disorder. The Crown accepts that in the circumstances s10A is enlivened and the court sentencing discretion is at large. Having read the material from both Mr Cummins and Mr Candlish I agree with that submission.
Past Criminal History
7Mr Robinson accepts his history of past offending as set out by the Crown. Of particular importance is the history of previous breaches of supervision orders. It is necessary to set these out as they give context to the sentence I will impose. On 27 February 2018, His Honour Judge Lacava ordered that Mr Robinson be subjected to a supervision order of four years' duration commencing on that day. On 30 November 2018, Mr Robinson was found guilty and sentenced to a breach of that supervision order in the order of 262 days' imprisonment wholly reckoned as a period already served by way of pre‑sentence detention. The sentence was imposed by reason of an assault on a police officer. There was additionally a minor charge of intentionally destroying property for which Mr Robinson received a fine. Ms Kennedy who appeared for Mr Robinson at the adjourned plea made the point that the length of time served occurred by reason of the summary and indictable offences needing to be joined in the County Court. The resultant procedural delay was inordinate and not of his making given he, Mr Robinson, had pleaded guilty at the earliest opportunity. Ms Kennedy submitted that the length of sentence then did not reflect the seriousness of the offence. The Crown did not demur from that submission.
8The second breach of the supervision order occurred on 9 July 2019 when you were convicted attempting to obtain child pornography. You were sentenced to a term of three months' imprisonment. [Amended subsequent to the Plea in accordance with Exhibit P8 – see discussion below]
9At this plea your counsel accepted that the offending was objectively serious and warranted a period of immediate imprisonment.
10In mitigation Ms Kennedy put the following matters:
(a) that you suffer from mild intellectual disability and have psychological issues which enliven the principles in Verdins;
(b) that you have entered the plea of guilty at the earliest opportunity and ought be given credit for this plea, as it is indicative of remorse and acceptance of responsibility. I accept the submission.
11Taking the whole of your situation into account then, I find your intellectual disability and your psychological state lessen the weight of both general deterrence and denunciation sentencing principles.
12I find specific deterrence, though it must be moderated, remains important given your history and particular prior offending. This is particularly so in relation to the scheme of supervision orders in place in Victoria and the seriousness with which the breach of a supervision order ought be regarded by you. In this regard, I note that the offending was against a person who was doing no more than attempting to care for you as part of the regime imposed by the state when your supervision order was renewed by Her Honour Judge Cannon. Punishment is accepted as an important sentencing consideration. However, the most important factors I consider are that this is a further breach of a restrictive condition of the supervision order where a worker has been assaulted. While no victim impact statement or medical report was tendered, it was accepted that Gajewski had three teeth surgically repaired as a result of the assault. Protection of the community from such actions is also important.
13Weighing those matters and synthesising them, I sentence you on the breach of supervision order to a period of eight months and on the unlawful assault charge to a period of two months. Those periods are to be served concurrently, making for a total period of imprisonment of eight months. Obviously no non-parole period will be imposed. I order that 55 days be reckoned as pre-sentence detention. But for your early plea of guilty I would have sentenced you to 13 months.
14That ends my sentencing reasons. Are there any matters arising from that, Ms Locke?
15MS LOCKE: No, Your Honour.
16MS KENNEDY: Yes, Your Honour. Can I just note that - sorry, just let me check his priors. That three months' imprisonment, my understanding was it was not for possession of child pornography, it was for - - -
17HIS HONOUR: For the breach, is that correct?
18MS KENNEDY: Yes, it was for not giving his phone and - sorry, I will just double-check it. The contravention was for - sorry, it is not noted on his priors. The contravention was for not handing over his phone and for leaving the premises. There was originally a charge of possessing child pornography at that time, but that was withdrawn.
19HIS HONOUR: I see. The way that I had read it was that the phone contained the images and that was the charge that proceeded, but you say that is not right.
20MS KENNEDY: No, the charge was for not giving them the phone when they asked for it. On the phone there were some pictures of I think it was a child's clothing site or something, but it was deemed not to be possession of child pornography. And there was a third charge for that, and that charge was withdrawn. So when you are referring to the three months, he received that for a breach but the breaching actions were not handing over his phone when asked and for leaving the premises at Nicholson House. So I just think that should be distinctly - - -
21MS LOCKE: I apologise, Your Honour. My summary of prosecution opening is misleading in that respect then. I apologise. Because, if I bring up the document, yes, Your Honour, paragraph 15 then of the prosecution opening then is incorrect and I apologise.
22HIS HONOUR: Ms Kennedy, when the prosecution opening was read, I know that you were not there, but no issue was taken with it by counsel who appeared for Mr Robinson at that time.
23MS KENNEDY: I am sorry, I cannot - I apologise for not taking issue with it when I appeared at the further plea, Your Honour, but those are the circumstances of that three-month breach. He was charged with possession of child and not handing over his phone and leaving the premises. Those were the three charges. Only two proceeded on the plea.
24HIS HONOUR: All right. Well, I take you at your word about that, Ms Kennedy, but, Ms Locke, you cannot say anything about it I take it.
25MS LOCKE: No, unfortunately, Your Honour, I was not involved in this matter at that time and the summary of prosecution opening was written on basis of my instructions.
26HIS HONOUR: All right. Well, it is better that we correct the error I suppose. Do you need instructions, Ms Locke, or are you happy to agree with what your friend says?
27MS LOCKE: I apologise for this, Your Honour. If I can have five or 10 minutes I would be indebted to Your Honour.
28HIS HONOUR: Yes, certainly. But just before I let you have that time, what are you going to say about that?
29MS LOCKE: I - - -
30HIS HONOUR: Sorry, no, Ms Kennedy, what are you going to say about it in any event?
31MS KENNEDY: I just want the record corrected in your sentencing remarks, Your Honour. It does not affect the outcome at all, I just would like that corrected in the sentencing remarks, that that was not what he was dealt with for and that was not what he received the three months for back in 2018. That is all I wanted to do.
32MS LOCKE: What I intend to do, Your Honour, is just to confirm the wording of an amendment to paragraph 15 so that the summary of prosecution opening reflets what we have discussed.
33HIS HONOUR: All right. Well, I will give you 10 minutes then and I will just have my associate place you into a break-out room. Did you need to talk to Ms Kennedy or are you happy just to talk to your instructor?
34MS LOCKE: I am satisfied on the basis of what Ms Kennedy has said, Your Honour.
35HIS HONOUR: All right. Yes, Ms Kennedy?
36MS KENNEDY: Sorry, Your Honour, can I just mention in regards to the suppression order as well, while we are standing down, my understanding, my notes from the supervision order being made in 2020, was that the suppression order was not continued after that date. There was an application to continue it on 16 July 2020, submissions were made by both parties and Her Honour deemed that it was in the public interest not to make the suppression order continue any further.
37HIS HONOUR: All right. Thank you for correcting that. We will just stand down for 10 minutes, please.
38MS KENNEDY: Thank you, Your Honour.
39MS LOCKE: As Your Honour pleases.
(Short adjournment.)
40MS LOCKE: - - - from Corrections my instructor and an amended prosecution opening will be emailed through to Your Honour's associate that reflects the discussions this morning.
41HIS HONOUR: All right. Are you able to tell me what that will say?
42MS LOCKE: Yes, certainly, Your Honour. Paragraph 15 of the prosecution opening now reads: 'On 9 July 2019 Mr Robinson was convicted of two charges of contravene condition of supervision order. The basis of these charges was failing to hand over his mobile telephone and leaving his residence without permission. He was sentenced to a term of three month's imprisonment, 76 days' pre‑sentence detention was declared'.
43HIS HONOUR: All right. What do you say about that, Ms Kennedy?
44MS KENNEDY: No, I am satisfied with that, Your Honour. I just want it to clearly reflect his priors.
45HIS HONOUR: Yes. Well, I think in the circumstances if that is agreed I will certainly let you file that, Ms Locke. I think that will become Exhibit P3, is that right?
46MS LOCKE: There are a number of documents, Your Honour, filed at the last mention. I believe we might have been at P6.
47HIS HONOUR: P6, all right. I will just check that, but that will become an exhibit and I will consequently amend my sentencing remarks to more accurately reflect that event on 9 July 2019.
48MS KENNEDY: Thank you, Your Honour.
49MS LOCKE: As Your Honour pleases.
50HIS HONOUR: So, Ms Locke, can you just indicate to me when you will have that to the court and also Ms Kennedy.
51MS LOCKE: Should be being emailed as we speak, Your Honour.
52HIS HONOUR: All right, thank you. It is just that I am meant to start something at 10 and I just would like to get this done.
53MS LOCKE: Certainly, Your Honour.
54HIS HONOUR: All right. Well, if that comes in, that becomes Exhibit P6. I will amend my sentencing remarks in due course, but otherwise is there anything I need to deal with?
55MS KENNEDY: No, thank you.
56MS LOCKE: No, Your Honour.
57HIS HONOUR: No. And, Ms Locke, you have got nothing to say about the audio recording going as is to (indistinct words).
58MS LOCKE: Well, I have heard what my learned friend has to say about it, Your Honour. I do note that the way that these matters are listed in court is that they are listed by initials and whether that is a hangover from when there was a suppression order or whether that is the subject of a separate policy of the County Court, I am not sure whether the removal of Mr Robinson's name from the audio is appropriate only because of the fact that the listing itself is a silent listing.
59But I also have heard what my learned friend has said about the basis for not continuing the suppression order, so removing his name might in fact be inconsistent with that decision.
60HIS HONOUR: All right. Well, then I will simply release the audio recording as is and I think, Ms Locke, lastly the amended opening will be P8.
EXHIBIT P8 - Amended prosecution summary opening.
61MS LOCKE: As Your Honour pleases.
62HIS HONOUR: Thank you for your attendance today. I will now have my associate terminate the link, though, Ms Kennedy, you do want to talk to your client, do you not?
63MS KENNEDY: If I could have a short minute with him, yes, Your Honour.
64HIS HONOUR: Yes, certainly. Well, I will - - -
65MS KENNEDY: Five minutes.
66HIS HONOUR: I will have my associate place Mr Robison and Ms Kennedy into a break-out room.
67MS KENNEDY: Thank you, Your Honour.
68HIS HONOUR: Thank you for your attendance.
69MS KENNEDY: As Your Honour pleases.
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