Jonathon Charles Byrnes v The Queen
[2015] VSCA 341
•10 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0187
| JONATHON CHARLES BYRNES | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 December 2015 |
| DATE OF JUDGMENT: | 10 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 341 |
| JUDGMENT APPEALED FROM: | DPP v Byrnes (County Court of Victoria, Judge McInerney, 6 August 2015). |
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CRIMINAL LAW – Leave to appeal against sentence – False imprisonment – Threat to kill – Manifest excess – Double punishment – Combination sentence – Family violence - Serious offending – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G Connelly | Tony Danos Solicitors |
| For the Crown | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA:
The applicant seeks leave to appeal against a sentence imposed on him by a judge of the County Court on 3 September 2015.
The applicant pleaded guilty to one charge of false imprisonment and one charge of threat to kill. He also pleaded guilty to four summary offences, being one charge of contravening a family violence intervention order (a rolled up charge), one charge of assault with a weapon, one charge of assaulting police in the execution of duty (a rolled up charge) and one charge of resisting police in the execution of duty (a rolled up charge). Pursuant to s 145 and s 242 of the Criminal Procedure Act 2009, those summary offences were transferred to the County Court to be determined by that court.
On 3 September 2015, the applicant was sentenced in respect of those offences as follows:
| Charges on Indictment | Offence | Maximum Penalty | Sentence | Cumulation |
| 1. | False Imprisonment [Common Law] | 10 years [s 320 of the Crimes Act 1958] | 3 years | Base |
| 2. | Threat to Kill [s 20 Crimes Act 1958] | 10 years [s 20 Crimes Act 1958] | 2 years | 6 months |
| Related Summary Charge “1” | Contravene family violence intervention order [s 123(2) Family Violence Protection Act 2008] | 2 years [s 123(2) Family Violence Protection Act 2008] | Aggregate 6 months imprisonment | 3 months imprisonment |
| Related Summary Charge “2” | Aggravated Assault [s 24(2) Summary Offences Act 1966] | 2 years [s 24(2) Summary Offences Act 1966] | 3 months imprisonment | Nil |
| Related Summary Charge “3” | Contravene family violence intervention order [s 123(2) Family Violence Protection Act 2008] | 2 years [s 123(2) Family Violence Protection Act 2008] | Aggregate 6 months imprisonment | 3 months imprisonment |
| Related Summary Charge “4” | Contravene family violence intervention order [s 123(2) Family Violence Protection Act 2008] | 2 years [s 123(2) Family Violence Protection Act 2008] | Aggregate 6 months imprisonment | 3 months imprisonment |
| Related Summary Charge “5” | Assault Police [s 52(1) Summary Offences Act 1966] | 6 months [s 52(1) Summary Offences Act 1966] | 1 month imprisonment | Nil |
| Related Summary Charge “6” | Resist Arrest [s 52(1) Summary Offences Act 1966] | 6 months [s 52(1) Summary Offences Act 1966] | 1 month imprisonment | Nil |
| Total Effective Sentence: | 3 years 9 months | |||
| Non-Parole Period: | 2 years 6 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 6 days | |||
| 6AAA Statement: | 5 years imprisonment with a non-parole period of 3 years 4 months | |||
| Other relevant orders: | Forensic sample order, Disposal order and forfeiture order | |||
The applicant seeks leave to appeal on the following grounds:
Ground 1 — the base sentence imposed on the charge 1, false imprisonment, the total effective sentence and non-parole period are manifestly excessive.
Ground 2 — the learned sentencing judge erred in subjecting the applicant to double punishment.
Ground 3 — the learned sentencing judge erred in failing to impose a combination sentence under s 44(1) of the Sentencing Act 1991.
The applicant was born in September 1987 and was aged 25 to 26 years at the time of the offending. The victim, Ms G, was born in 1989, and was aged 24 years at that time. The applicant and Ms G had met about three years previously. Approximately nine months before the offending, the applicant moved into Ms G’s house in Blackburn South. They had a casual sexual relationship during that period.
At the time of the principal offending on 30 October 2013, Ms G was 17 weeks pregnant to a child fathered by the applicant. In the lead up to that date, the applicant and Ms G had been engaging in an ongoing dispute relating to the pregnancy. The applicant wanted Ms G to terminate the pregnancy, but she did not wish to do so. On 12 August and 16 August 2013, in the course of verbal arguments concerning that matter, the applicant made threats of physical violence to Ms G or to the baby. As a result of those threats, a Family Violence Intervention Order, protecting Ms G and her five year old daughter, was granted on 20 August, and served on the applicant.
Subsequently, on 3 September 2013, and again on 9 September 2013, the applicant posted comments on his Facebook page again threatening Ms G and her unborn baby. Those comments formed part of the basis of the summary charge of contravene Family Violence Intervention Order (‘Intervention Order’).
On 30 October 2013, in the early afternoon, Ms G attended at the Blackburn South house to feed her dog and to talk to the applicant about some Family Court issues. When she arrived, the applicant induced her to leave her mobile telephone in her vehicle. After she entered the unit, the applicant locked the front and back doors to the house and blocked them. He then proceeded to shout at Ms G in angry and irrational terms. In the course of that conduct, the applicant pulled a silver diving knife from his trousers and held it towards Ms G. The knife was 15 to 20 centimetres long.
Ms G walked to her bedroom and closed the door. The applicant followed her, and kicked the door open. He put his arm to her throat, pinned her against the wall, and held the knife against her stomach. He told her to undress. When she refused, he became angry, and ripped all her clothes off. He then grabbed her face, put the knife to her stomach and bit her cheek. When she screamed, he put his hand over her mouth and told her not to scream or he would kill her. At one point, he held the knife to her throat. During that incident, the applicant threatened Ms G that if she called the police, he would put the knife straight through her. (That offending was part of the basis for charge 2 on the indictment — making threats to kill).
The applicant pushed Ms G against the bathroom wall and tried to punch her down into the bath. He told her that she must lie in the bath as he was going to abort the baby. When she refused, he became angry, pushed her onto the floor, stabbed the bathroom door, and dragged the knife along the door. When Ms G managed to escape back to the bedroom, he pushed her up against the wardrobe, pointed the knife at her stomach, placed his arm across her throat, and told her not to scream or he would kill her. (That conduct also formed part of charge 2 on the indictment). Not surprisingly, Ms G was most distressed, and was crying throughout the whole of the incident.
The applicant then forced Ms G to put her hand in a white handbag, where she felt some bullets and a syringe. The applicant told Ms G that the bullets were linked to murders, and each bullet was for a member of her family. He then forced her into the kitchen, and held the knife on her back. She told him that she wanted to leave. He said she could not leave until she made some recordings. He made her write notes stating that she had lied and made false reports against him. He attempted to record Ms G by using his mobile telephone. However, she was unable to speak because by then she was extremely distressed, crying, and hyperventilating.
The applicant then became tearful stating he was going to kill himself. He took some Valium and Mogadon with alcohol, and passed out on the bed. That enabled Ms G to escape the unit and go to her mother’s address.
In his opening to the sentencing judge, the prosecutor made clear that the conduct of the applicant, that was not relied upon for charge 2 of the summary offence of assault with a weapon, formed the basis of charge 1 on the indictment, false imprisonment. The prosecutor told the judge that the false imprisonment and assaults against Ms G also formed part of the basis of the summary charge of contravene FVIO. The actions of the applicant, in holding the knife against Ms G’s stomach and back, formed the basis of the summary charge of assault with a weapon.
On 30 October 2013, police arrested the applicant and took him to Glen Waverley Police Station. In the interview room, he became aggressive and violent towards the police and he refused to comply with directions. At one stage, he lunged towards a police member with raised fists, as a result of which the member was forced to use OC foam spray to subdue him. The applicant also attempted to punch another police member. That conduct formed the basis of the summary charge of assaulting police. After police members attempted to remove the applicant from the interview room, he persisted in engaging in violent and aggressive behaviour towards them and he continued to resist police until he was restrained and handcuffed. That conduct formed the basis of the summary charge of resisting police. Subsequently, the police attempted to interview the applicant on 30 October. However, he appeared to be suffering from a ‘psychotic episode’, as a result of which he was conveyed by ambulance to Box Hill Hospital.
The plea
The applicant did not have any relevant criminal convictions. From an early age, he had experienced a number of behavioural problems at school, and he was considered to suffer from attention deficit hyperactivity disorder. In his early 20s he suffered a back injury, as a result of which he became unable to obtain employment. He became involved in excessive drinking and the consumption of drugs.
In the course of the plea on his behalf, the judge received two reports from Dr Lanka Cooray, a psychiatrist. Dr Cooray expressed the view that the applicant was suffering from Bipolar Disorder Type 2, which consists of depressive episodes and hypomanic episodes. However, Dr Cooray considered that the applicant’s psychiatric condition did not cause or contribute to his offending. On the other hand, his consumption of drugs at the time could have made him disinhibited, and affected his ability to think clearly, and to make calm and reasoned decisions.
The judge also received a report from Ms Carla Lechner, a clinical and forensic psychologist, who had examined the applicant on 10 July 2014. Ms Lechner noted the applicant’s diagnosis of bipolar mood disorder, and considered that he also exhibited high levels of anxiety and obsessive compulsive traits. Ms Lechner expressed the view that, at the time of the offences, the applicant was psychologically unwell, and was upset by his partner’s pregnancy and his ongoing back pain. He had consumed a cocktail of drugs and alcohol. All of those factors (according to Ms Lechner) combined to adversely affect his judgment, decision making and capacity for impulse inhibition.
Sentencing judge’s remarks
The judge set out, in his sentencing remarks, in some detail, the circumstances of the offending, which I have summarised. He noted that the applicant had subjected Ms G to a most terrifying experience. The judge resolved the difference between the opinion of Dr Cooray and the opinion of Dr Lechner in favour of the latter, and accordingly accepted that the applicant’s mental condition was relevant to each of the six aspects of sentencing summarised in R v Verdins.[1] In particular, the judge considered that the applicant’s mental state was relevant to his culpability, and to general and specific deterrence. The judge accepted, in mitigation, that the applicant committed the offences, with which he was charged, because he was not functioning in a reasoned state at the time. The judge also noted that the applicant had no previous convictions.
[1](2007) 16 VR 269, 276 [32].
The judge referred to the submission by counsel for the applicant that the sentence imposed by him should involve a term of imprisonment together with a community correction order pursuant to s 44 of the Sentencing Act 1991. He noted that the prosecutor did not oppose that course. However, the judge considered that such a disposition would not be appropriate in the circumstances, and concluded that only a sentence involving a term of immediate imprisonment would suffice.
Ground 1
In support of ground 1 of the application, it is submitted that the offending lacked the aggravating features commonly associated with sentences of the length imposed by the sentencing judge. In particular, it is pointed out that it was not a false imprisonment by a professional criminal in the course of carrying on his business. It is also submitted that the period of confinement was comparatively brief, the applicant was not in company, the victim was an adult, and she sustained very little physical harm. The judge found that, because of the applicant’s mental state at the time of the offending, the culpability of the applicant, and the weight to be accorded to specific and general deterrence, should be moderated. In addition, the applicant had no relevant previous criminal history, he had pleaded guilty at an early stage, was genuinely remorseful, and had taken important steps to rehabilitate himself.
In order to establish the ground of manifest excess for the purposes of obtaining leave, the applicant must demonstrate that it is reasonably arguable that the sentences imposed on him were wholly outside the range of sentencing options available to the sentencing judge.[2]
[2]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
The indictable offences of false imprisonment and threat to kill are serious offences. They each have a maximum sentence of ten years imprisonment. The applicant’s offending had a number of very serious characteristics. As the respondent has pointed out, it was premeditated, and the applicant had clearly prepared for it. The victim was vulnerable. She was carrying the applicant’s baby. The applicant took advantage of his greater strength, and the fact that he had a weapon, to overwhelm her. The threat to abort the baby was, as the judge correctly said, a ‘most ugly’ aspect of the false imprisonment. The whole experience, to which the applicant subjected her, must have been extraordinarily terrifying. She was justifiably in grave fear for her own life and that of her baby. While the imprisonment did not extend for hours or days, it lasted for over one hour, during the whole of which the applicant terrorised his victim.
In those circumstances, the offending by the applicant, comprising charge 1, called for a stern sentence. In such a case, involving wanton domestic violence, general deterrence, specific deterrence, and denunciation were important considerations.[3] While the judge accepted that the applicant’s psychological condition moderated the weight to be given to those considerations, nevertheless, they rightly remained important factors in the determination of the applicant’s sentence.[4]
[3]Filiz v The Queen [2014] VSCA 212, [21] (Maxwell P and Redlich JA); Mercer v The Queen [2015] VSCA 257, [54] (Maxwell P and Beach JA).
[4]R v Yaldiz [1998] 2VR 376, 381 (Batt JA).
The judge was conscious of, and took into account, the mitigating circumstances relied on by the applicant. He accepted that the applicant’s mental condition did play a role in the offending, and thus was relevant to each of the aspects of sentencing summarised in R v Verdins.[5] The judge also took into account that the applicant did not have any previous convictions, and that he had taken important steps towards his rehabilitation. In light of those mitigating circumstances, the sentences might fairly be described as quite high. Nevertheless, as I have stated, the circumstances of the offending were particularly serious, and they required the imposition of a sentence that was sufficient to reflect the gravity of the offending, and serve the purposes of sentencing including general deterrence and denunciation. Taking those matters into account, and giving full weight to them, I am not persuaded that it is reasonably arguable that the sentence imposed on charge 1, the total effective sentence or the non-parole period, were wholly outside the range of sentences available to the judge in the circumstances. Accordingly, I do not grant leave on ground 1.
[5](2007) 16 VR 269, 276 [32].
Ground 2
In support of ground 2, it is submitted that all of the charges, in respect of offences committed on 30 October 2013, involved offences committed in the course of the one single incident. Thus, there was a close connection between the false imprisonment (charge 1), the offence of threat to kill (charge 2), and the summary offences of assault with weapon and breach of intervention order on that date. Counsel for the applicant has correctly accepted that the conduct, comprising the threats to kill and the assault with a weapon, could be taken into account in identifying the nature of the victim’s experience while she was lawfully imprisoned for the purpose of charge 1, and thus could be used in aggravation of the sentence imposed on the charge of false imprisonment. Nevertheless, it is submitted that the sentences imposed by the judge, together with the orders for cumulation, in respect of the offence of threat to kill, and the contravention of the intervention order, were such as to indicate that the applicant had been doubly punished for his conduct on 30 October 2013.
In R v King,[6] the appellant was charged with false imprisonment, two charges of intentionally causing injury, one charge of threat to kill, one charge of indecent assault, and one charge of threat to inflict serious injury. Those charges all related to a single incident in which the appellant had detained his former partner in their bedroom, assaulted her, and made various threats to her. Redlich JA (with whom Vincent JA and Habersberger AJA agreed) outlined the relevant principles applicable to such a case, which, as applied to this case, may be summarised as follows:
(1)Although the crime of false imprisonment was a continuing one, the various counts on the indictment and the summary charges were each separate and distinct.
(2)It was not required that the sentences imposed on each of those charges be made wholly concurrent.
(3)However, the judge was required to exercise care in fixing the sentences and making an order for cumulation to ensure that the accused was not subjected to double punishment.
(4)Nevertheless each of the offences called for the imposition of separate and significant punishment.
(5)In order to assess the gravity of the false imprisonment, it was appropriate to take into account the experience to which the victim was exposed. In particular, the fear inspired in the victim by the applicant’s conduct aggravated his offending.
[6][2007] VSCA 38.
In this case, the prosecutor in his opening specifically identified the particular conduct of the applicant that was relied on to support the second charge on the indictment (making a threat to kill), and the summary charges of breach of intervention order and assault with a weapon. The judge, in his reasons for sentence, similarly identified the conduct by the applicant that was relied on by the prosecution in respect of those charges. There is nothing in the judge’s sentencing remarks that indicates that the sentences imposed by him, for each offence, and the orders for cumulation, involved any aspect of double punishment of the applicant.
While the threat to kill, and the contravention of the intervention order, were each committed in the course of the false imprisonment, they were discrete offences, deserving of separate punishment. The threats by the applicant to kill Ms G aggravated the false imprisonment, as they were calculated to exacerbate the fear experienced by her. In addition, of themselves, they were quite a serious instance of the offence, in light of the circumstances in which the threats were made. The offending merited a reasonably severe sentence, with a significant amount of cumulation on the sentence imposed on charge 1. In the circumstances, the sentences imposed for those offences, and the orders for cumulation, were each quite moderate. They fall well short of indicating that there was any aspect of double punishment in the sentences, and in orders for cumulation.
In those circumstances, I do not consider that it is reasonably arguable that there was any element of double punishment contained in the sentences imposed on the applicant. I would therefore not grant leave to appeal on ground 2.
Ground 3
The submission of the applicant on ground 3 is that it was not reasonably open to the judge to decline to combine a period of imprisonment, imposed on the applicant, with a community corrections order, pursuant to s 44 of the Sentencing Act 1991. In particular, in support of that submission, counsel for the applicant relies on the applicant’s absence of any relevant criminal history, his relatively young age (he was aged 27 at the time of the offending), the fact that the offending was a response to an extraordinary crisis in the applicant’s life with which he was ill equipped to cope, the steps taken by the applicant to rehabilitate, and his underlying psychological and psychiatric problems. The applicant also relies on the guideline judgment of the court in R v Boulton,[7] in support of the proposition that community corrections orders are available in response to a wide variety of offending, including very serious offending.
[7][2014] VSCA 342, [131]–[135] (‘Boulton’).
Since the decision in Boulton, it has been pointed out by this Court, on a number of occasions, that while a community corrections order might be available even in cases of relatively serious offences, nevertheless the imposition of a CCO, whether alone or in combination with a sentence of imprisonment, might, in many cases, not be appropriate to reflect the gravity of the offending in the circumstances of the case.[8] In the present case, the sentencing judge gave careful consideration to the submission made on behalf of the applicant that part of his sentence should consist of a community corrections order. However, he ultimately concluded that the gravity of the offending was such as to preclude the imposition of a CCO, notwithstanding the mitigating circumstances that I have outlined. In light of the seriousness of the offending by the applicant, I do not consider that it is reasonably arguable that it was not open to the judge to form that conclusion, and to decline to impose a sentence involving a term of imprisonment in combination with a CCO. For those reasons, I do not grant the applicant leave to appeal on ground 3.
[8]See for example Hutchinson v The Queen [2015] VSCA 115, [17] (Priest JA); R v Drago [2015] VSCA 291, [38] (Priest JA); R v Manariti [2015] VSCA 160, [29] (Ashley and Beach JJA); Harris v The Queen [2015] VSCA 192, [26] (Beach JA).
Conclusion
For the foregoing reasons, the applicant has not made out an arguable case on any of the grounds relied on. Accordingly, the application by the applicant for leave to appeal against sentence is refused.
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