Robert Byrnes v The Queen
[2015] VSCA 157
•19 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0168
| ROBERT BYRNES | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 June 2015 |
| DATE OF JUDGMENT: | 19 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 157 |
| JUDGMENT APPEALED FROM: | DPP v Byrnes (Unreported, County Court of Victoria, Judge Mullaly, Conviction 4 March 2014, Sentence 26 June 2014) |
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CRIMINAL LAW – Sentence – Appeal – Rape – Indecent Assault – Three complainants – Manifest Excess – Total effective sentence of 10 years and 6 months’ imprisonment with non-parole period of 8 years – Whether individual sentences, total effective sentence and non-parole period are manifestly excessive – Totality – Whether total effective sentence and non-parole period offends principle of totality – No relevant prior convictions – Strong work history – Prospects of rehabilitation – Low IQ – Appeal allowed – Appellant resentenced to total effective sentence of 8 years and 6 months’ imprisonment with non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms F H Todd | Stuthridge Legal |
| For the Crown | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
Following a trial on an indictment concerning offences against the victim ‘Ms X’, on 4 March 2014 a County Court jury convicted the appellant of her indecent assault (two charges, charges 5 and 6) and rape (two charges, charges 7 and 8).[1]
[1]The indictment had earlier been severed, and the trial proceeded on these charges.
The next day, on 5 March 2014, the appellant pleaded guilty to a single charge of indecent assault relating to the victim ‘Ms Y’.
Several days later, on 11 March 2014, he pleaded guilty to four charges of indecent assault relating to the victim ‘Ms Z’ (charges 1 to 4).
With respect to the offences committed against the three victims, on 26 June 2014, the trial judge sentenced the appellant to be imprisoned according to the following table:
Charge
Offence
Sentence
Cumulation
Complainant Ms X: Indictment C12948312 (Convicted at trial)
5 Indecent assault[2] 12 months 3 months 6 Indecent assault 12 months 3 months 7 Rape[3], [4] 4 years 18 months 8 Rape 6 years Base Total sentence on indictment re Ms X offences 8 years Complainant Ms Y: Indictment C12948312.2 (Guilty plea)
1 Indecent assault[5] 9 months 6 months [2]Crimes Act 1958, s 39. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 38. The maximum penalty is 25 years’ imprisonment.
[4]Pursuant to Part 2A of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender on charges 7 and 8.
[5]Pursuant to Part 2A of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender on this charge.
Complainant Ms Z: Indictment C12948312.3 (Guilty pleas)
1 Indecent assault 12 months 4 months 2 Indecent assault 10 months 1 month 3 Indecent assault[6] 18 months 7 months 4 Indecent assault 24 months Base Total sentence on indictment re Ms Z offences 3 years Cumulation on trial indictment 2 years and 6 months[7] Total effective sentence
10 years and 6 months
Non-parole period
8 years
Section 6AAA declaration
12 years and 6 months with non-parole period of 10 years and 6 months
Other orders
Forfeiture; forensic sample; Sex Offender Registration Act 2004
[6]Pursuant to Part 2A of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender on charges 3 and 4. He should also have been sentenced as a serious sexual offender on charges 1 and 2.
[7]Six months of the sentence on Indictment C12948312.2 (Ms Y), and two years on Indictment C12948312.3 (Ms Z).
On 10 November 2014, the appellant was given leave to appeal against his sentence on the following ground:
The individual sentences, total effective sentence and non-parole period are manifestly excessive and offend the principle of totality, particularly in view of the following matters:
(a) The lack of relevant prior history.
(b)The fact that the term of imprisonment would be more difficult for the appellant because of his knowledge of the suffering of his [9] year old son.[8]
[8]While the ground of appeal, and the sentencing judge’s reasons, refer to a 14 year old son, the evidence given on the plea from the appellant’s wife shows that the relevant son was born in 2004 (see also the report dated 19 June 2014 of Pamela Matthews, forensic psychologist, tendered as exhibit 1 on the plea).
(c) The appellant’s strong work history.
(d)The appellant’s strong history as a father and primary carer for his children.
(e)The appellant’s participation in community activities such as voluntary work and sporting clubs.
(f)The fact that the applicant would serve his term in protective custody.
(g) The reasonably good prospects for the appellant’s reform.
(h)The entry of pleas of guilty for the offences against Mses Y and Z.
(i)The fact that these pleas meant that the victims did not have to give evidence in front of a jury.
(j)The fact that, despite a low IQ, the appellant had maintained employment and strong family units.
(k)The appellant’s growing insight into the trauma endured by the victims and the expression of remorse that inheres in that insight.
(l)The fact that the appellant has the continuing support of his family.
(m)The level and quality of the public condemnation in the media that the appellant had been subjected to.
The offending
At the time of the offending the appellant was aged between 43 and 44 years, and worked as a taxi driver in Bendigo.
On 21 October 2012, the complainant, Ms X, celebrated her brother’s birthday at her family home. She then went to a bar in Bendigo, where she lost her telephone. Ms X decided to go home and hailed a taxi which the appellant was driving.
Shortly after picking up Ms X, the appellant received a telephone call, as a result of which he picked up two men, whom he drove to their destination. After the two men got out of the taxi, the appellant put his hand on Ms X’s leg. He moved his hand up under her dress onto her vagina. Despite Ms X pushing his hand away, the appellant did this twice (charges 5 and 6, indecent assault). The appellant then penetrated Ms X’s vagina with his fingers (charge 7, rape).
Following these events, the appellant drove off the main road and parked the taxi in an empty car park. He placed his cap over the taxi’s CCTV camera. The appellant then raped Ms X in the back of the taxi (a station wagon), by inserting his penis into her vagina until he ejaculated (charge 8, rape).
Ms X felt she had no other option but to remain in the taxi. She feared that she may be taken somewhere and killed. The taxi drove from the car park. Oddly, the appellant gave Ms X his card and telephone number, and told her to call him if she wanted a taxi in the future. Ms X asked the appellant to stop the taxi at a point away from her house, since she did not want the appellant to know where she lived. She walked to her house and told her parents what had happened. Her mother called 000.
About an hour before the incident involving Ms X, at about 2:00am, Ms Y left a bar in Bendigo. She was walking home, and became concerned about a car in the vicinity. The appellant pulled up in his taxi and offered to take her home. At first Ms Y declined, but later got into the taxi. Shortly after she entered the taxi the appellant started to rub Ms Y’s bare thigh. He touched her hair and neck and brushed across her breast. Ms Y moved as far away from the appellant as she could, but he continued to rub her legs, trying to force his hand between her upper thighs. She put her hands down so as to block the appellant’s hands, which she then pushed away (charge 1, indecent assault). The appellant began to rub Ms Y’s thigh again, but Ms Y falsely told him that they were approaching her house. The appellant told her to ask for him if she ever needed a taxi. Ms Y threw $15 at the appellant. She got out of the taxi and hid to be sure that the taxi was leaving. Ms Y then ran home and told her friends what had happened.
Ms Z became a close friend of the appellant’s wife through a self-help building project. In early 2012, the appellant, uninvited, went to Ms Z’s home. She was there with her autistic son. Whilst in the house, the appellant approached Ms Z from behind and massaged her neck and shoulders. He then put his hand down her shirt, underneath her bra, and began squeezing Ms Z’s breast. The appellant pressed and rubbed his penis against Ms Z. She tried to elbow the appellant and told him to stop. He persisted, however, and grabbed Ms Z from behind. He put his hand down her shorts, into her underwear, and touched her vagina with his fingers (charge 1, indecent assault). Ms Z pleaded with the appellant to stop. The appellant then took out his penis, forced Ms Z’s hand onto it and moved her hand up and down (charge 2, indecent assault). During these events, the appellant made sexual comments to Ms Z, who pleaded with him to stop. Ms Z convinced the appellant that there were cameras in the house, and as a result, the appellant stopped what he was doing. He said, ‘We don’t have to talk about this’.
On 30 May 2012, Ms Z, who had just showered, heard a knock at the door. She answered the door wearing her bath robe. The appellant was at the door. He entered, opened Ms Z’s bath robe, and grabbed her breasts. The appellant rubbed Ms Z’s body and pressed himself against her. He then took out his penis. The appellant had one hand around Ms Z’s waist and pushed her into him. He kissed her on the neck and towards her breasts. Ms Z repeatedly told the appellant to stop and tried to push him away. The appellant put his hands between Ms Z’s legs and his fingers on her vagina. She told him to stop and broke free. The appellant chased her and again put his fingers on her vagina. Ms Z yelled at the appellant to stop. She shoved him. He chased her around the kitchen. The appellant then grabbed her and put his penis against her vagina. He again forced his hand between Ms Z’s legs and onto her vagina (charge 3, indecent assault). The appellant made comments about his sexual prowess and became aggressive. Ms Z was distressed and crying, and she begged the appellant to leave. He again put his hands between her legs and on her vagina (charge 4, indecent assault). Ms Z threatened to tell the appellant’s wife and show her camera footage. He released his grip on Ms Z and said, ‘You’re not going to tell Michelle (the appellant’s wife), are you?’ She said that if he left she would for now not tell his wife.
Ms Z told her husband about the offending in July 2012. She went to police in October, after the appellant’s other offences were revealed.
The judge’s reasons
The judge commenced his reasons for sentence with a description of the appellant’s offending. Having described the appellant’s offending, the judge then set out the very significant and adverse effects of this offending upon the appellant’s victims.[9]
[9]DPP v Byrnes (Unreported, County Court of Victoria, Judge Mullaly, 26 June 2014) (‘Reasons’) [30]–[35].
The judge then set out the appellant’s background as follows:
Mr Byrnes, you are now 46. You were raised in rural New South Wales in a supportive, happy household. You left school after Year 10 and have worked constantly ever since in labouring type work. Your work history is to your credit. Your first partner had a child when you met, and together you had a son, now in his twenties, and a daughter now aged 18. When the relationship ended, because of your partner's drug use, you then had custody of your son and daughter, who were then five and three. You looked after the children with help from your mother and sister.
Around 2000, your sister suggested you join her in Bendigo for work opportunities. You there met your now wife, Michelle. She had two children herself, who are now in their twenties, or thereabouts. Together you have a son, now aged 14.[10] You have been heavily involved in your childrens' lives, volunteering and participating in sporting clubs and the like. You are a family man. Your 14 year old clearly misses you now since you have been in custody. I accept gaol will be much harder knowing your son is struggling.
Your wife has supported you throughout, and visits you regularly now in prison. She will struggle while you are in prison. Your family home has been sold and the funds are in trust or frozen, awaiting compensation claims. For many years you used cannabis. This stopped once these matters came before the courts. You are doing all you can in prison to advance yourself and keep occupied. This is to your credit, as is your declared intent to do whatever sex offender programs you can while in prison. You are on protection whilst in prison, and I take this into account, meaning things are not as available to you in the prison, or prison is not as easy for you.
You were assessed by Ms Matthews. She found you had an I.Q. of 78. I take into account you are of low intelligence, and note that despite this, you have done very well to raise children on your own, keep good employment and provide well for your family. Your wife's evidence about these matters on the plea was impressive.[11]
[10]In fact, the appellant’s wife’s evidence on the plea (and the history to the forensic psychologist, Ms Matthews, shows that the appellant’s son was only nine years of age (almost 10) at the time of the plea.
[11]Reasons [36]–[39].
Next, the judge dealt with the prospects of the appellant’s risk of reoffending and his prospects of reform. The judge said:
In performing a risk analysis, Ms Matthews concluded your risk of sexual re-offending is moderate; it may or, in her view is likely, to reduce to lower than that if you have treatment. You have no relevant prior convictions and I have not considered any matters that have been alleged against you, as relevant at all.
With the support of your family and proper treatment, your prospects of reform are reasonably good. The concern is the nature and repetitive aspect of your crimes on a friend that was known to you, and then two unknown females that you came across as a taxi driver, also the risk rating of 'moderate' in the scale of 'high, moderate and low' must not be ignored.[12]
[12]Ibid [40]–[41].
The judge noted, as ‘an important mitigatory matter’, the appellant’s plea of guilty in relation to the matters involving Ms Y and Ms Z. As the judge put it, these pleas of guilty relieved Ms Y and Ms Z ‘of the likely very stressful experience of giving evidence in a trial and being challenged in cross-examination’.[13]
[13]Ibid [43].
In concluding, the judge said:
You seem to have growing insight into the trauma you have caused to the victims. I see that as an expression of remorse. I note that you have been subject to significant public condemnation in the local press in Bendigo.
The sentencing considerations of importance in these matters are protection of the community from you; denunciation and deterrence, especially to others, and also to a degree to you. Your rehabilitation is not overlooked, but given the gravity of all your crimes, it is a matter that must yield to the other sentencing purposes.
As a consequence of the serious offender provisions in our Sentencing Act, once you have been sentenced on two offences to a term of imprisonment you become a serious sexual offender. Thereafter, protection of the community must become the primary sentencing purpose. I am not asked, nor would I, impose a disproportionate sentence to achieve this purpose of protection of the community.
I must pay regard to the provisions of s.6E of the Sentencing Act relating to the cumulation of offences once you are declared as a serious sexual offender. While I do not ignore the principle of totality, I must pay proper regard to Parliament's intent in respect of orders for cumulation for offences where you are a serious sexual offender. In the end, your punishment must fit the serious crimes you have committed.
The punishment must express the community's hardening intolerance to sexual crimes against women. I must re-assert our community's proper values and pay proper regard to the effect, and likely long term effect, of what you did to each of these women. My sentence must send an unambiguous message that if you rape and indecently assault as a taxi driver, or to a friend, or acquaintance, or in any way, then you will certainly be imprisoned for a long time.[14]
[14]Ibid [44]–[48].
The appellant’s submissions
In submitting that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive, the appellant relied upon the matters acknowledged by the sentencing judge to be to the appellant’s credit and/or to be otherwise mitigatory (work history, participation in family and community life, absence of relevant prior convictions, consequences for the appellant’s nine year old son, burdensome nature of imprisonment for the appellant, support of the appellant’s family, prospects of reform being ‘reasonably good’, pleas of guilty in relation to Ms Y and Ms Z, the appellant’s ‘growing insight’ into the trauma he caused, and the fact that the appellant had been ‘subject to significant condemnation’ by the local press in his town).
It was submitted to be ‘of particular note that the sentences passed for the two rape counts in relation to Ms X made a total sentence on those two charges alone of seven and a half years’ imprisonment, in circumstances where the two acts of penetration were part of a series of events close in time and place’. The appellant submitted that ‘this combination of sentences in particular is where the excessive sentence is manifest in this case’.
As to totality, in his written case, the appellant submitted:
It is acknowledged that the totality principle is limited in circumstances where s 6E [of the Sentencing Act 1991] applies. However, even taking this into account, the cumulation between [the two counts relating to Ms X] is particularly sharp, when viewed in the light of the positive findings in mitigation made on the plea.
The respondent’s submissions
The respondent submitted that all of the mitigatory matters particularised in paragraphs (a)–(l) of the appellant’s ground of appeal were taken into account by the sentencing judge in his reasons for sentence. Each, it was submitted, was accorded appropriate mitigatory effect by the judge.
As to paragraph (m) (‘the level and quality of the public condemnation in the media that the appellant had been subjected to’), the respondent submitted that the judge was correct not to take this matter into account in mitigation. We interpolate that it may be that the respondent’s submission on this issue is overly generous to the appellant. In his reasons for sentence, the judge did note that the appellant had been ‘subject to significant public condemnation in the local press’.[15]
[15]Ibid [44].
The respondent submitted that the principles of denunciation, community protection and general and specific deterrence were ‘particularly apposite’ in this case given the nature and seriousness of the appellant’s offending. Further, it was contended that when one took into account the devastating effects of the offending on all three victims and the maximum penalties for the crimes of rape and indecent assault, it could not be said that the individual sentences, the total effective sentence, or the non-parole period were manifestly excessive. Additionally, it was submitted that it could not reasonably be contended that the cumulation of 18 months in relation to the second rape conviction involving Ms X was excessive.
Analysis
The appellant fell to be sentenced as a serious sexual offender. As a result, s 6E of the Sentencing Act 1991 required the sentences imposed upon the appellant as a serious sexual offender to be served cumulatively unless the Court otherwise directed.
Notwithstanding the objective seriousness of the appellant’s offending, the very significant consequences the appellant’s offending has had on his victims, the fact that the appellant fell to be sentenced as a serious sexual offender and the evident care with which the judge approached the sentencing task, in our view, when one gives appropriate weight to the mitigatory factors to which we have referred, the total effective sentence and non-parole period were manifestly excessive.
That the appellant’s offending called for an immediate term of imprisonment of significant length cannot be doubted. However, having performed the sentencing synthesis for ourselves, we have concluded that the total effective sentence and non-parole period were outside the permissible range. As has been said many times before, a conclusion about whether a sentence is or is not manifestly excessive does not usually admit of much discussion. That said, we think that when one gives appropriate weight to all of the relevant factors in this case, a total effective sentence of more than 10 years was beyond the available range of sentencing options.
Further, notwithstanding the fact that the appellant falls to be sentenced as a serious sexual offender, we think that the sentences imposed by the judge together with the orders for cumulation offended principles of totality. It is to be remembered that the offending involving Ms X and Ms Y occurred on the same night — although the offending involving Ms Z occurred some months earlier.
In all the circumstances, we would allow the appeal, and would resentence the appellant. The re-sentencing exercise is made somewhat complicated by the legislative scheme. With respect to charges 5 and 6 on Indictment C12948312, there is a legislative direction that any sentence passed on them is to be concurrent with other sentences unless otherwise directed.[16] Given that the appellant is to be sentenced as a serious sexual offender from charge 7 onwards, however, there is a legislative direction that sentences passed on charges 7 and 8, and on the charge on Indictment C12948312.2 and charges 1 to 4 on Indictment C12948312.3, are to be served cumulatively unless otherwise directed.[17] Strict compliance with the legislative regime concerning concurrency and cumulation is thus cumbersome. Our overall intention is, however, reflected in the following table:
[16]Sentencing Act 1991, s 16(1).
[17]Sentencing Act 1991, s 6E.
Charge
Offence
Sentence
Cumulation
Complainant Ms X: Indictment C12948312
5 Indecent assault 6 months 1 month 6 Indecent assault 6 months 1 month 7 Rape 4 years 7 months 8 Rape 5 years and 6 months Base Total sentence on indictment re Ms X offences 6 years and 3 months Complainant Ms Y: Indictment C12948312.2
1 Indecent assault 6 months 3 months Complainant Ms Z: Indictment C12948312.3
1 Indecent assault 9 months 3 months 2 Indecent assault 6 months 2 months 3 Indecent assault 12 months 7 months 4 Indecent assault 18 months Base Total sentence on indictment re Ms Z offences 2 years and 6 months Cumulation on trial indictment 2 years Total effective sentence
8 years and 6 months
Non-parole period
6 years
Conclusion
The appeal will be allowed. The sentences imposed in the County Court on 26 June 2014 will be set aside and the appellant will be resentenced as we have foreshadowed. All other orders made in the County Court are confirmed. To the extent that it is necessary, we declare that but for the appellant’s pleas of guilty in relation to the offences committed against Ms Y and Ms Z, we would have sentenced the appellant to a total effective sentence of 10 years and 6 months’ imprisonment with a non-parole period of 8 years.
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