Byrne v The Queen [2020] VSCA 289

1 On 29 October 2019 the applicant, Dwayne Byrne, then aged 26 years, pleaded guilty in the County Court at Melbourne to one charge of intentionally causing injury,[1] and to the summary offence of possessing a prohibited weapon.[2] On that day, his Honour Judge Mullaly sentenced the applicant to be imprisoned for five years and six months on the intentionally causing injury charge and for one month on the summary charge (wholly concurrent). The judge ordered that two years and six months of the sentence be served concurrently with a sentence the applicant was then serving, effecting cumulation of three years on the previous sentence. This resulted in a total effective sentence of 16 years' imprisonment. The judge fixed a non-parole period of 12 years and six months.

2 The sentence upon which the judge imposed cumulation was itself the product of two prior sentences. On 28 September 2016, the applicant was sentenced by John Dixon J in the Supreme Court to a total effective sentence of 12 years' imprisonment with a non-parole period of nine years for attempted murder and being a prohibited person in possession of a firearm.[3]

3 The sentence for attempted murder related to an incident on 7 February 2015 in which the applicant had stabbed a complete stranger six times in an unprovoked and frenzied attack.

4 Whilst being held at the Melbourne Remand Centre as a result of the attempted murder, the applicant participated in a prison riot. He was subsequently sentenced by his Honour Judge Taft in the County Court to two years' imprisonment with one year being concurrent with his previous sentence.[4] A new non-parole period was fixed at nine years and six months. Thus at the time the applicant fell to be sentenced by Judge Mullaly, he was serving a total effective sentence of 13 years' imprisonment with a non-parole period of nine years and six months.

5 The applicant has sought leave to appeal against the sentence on the charge of intentionally causing injury on the following grounds:

Ground 1A: The sentence imposed on the charge of intentionally cause injury is manifestly excessive.

Ground 1B: The order for cumulation is excessive and breaches the principle of totality.

6 On 23 April 2020, Priest JA refused leave to appeal pursuant to s 315 of the Criminal Procedure Act 2009.

7 The applicant has elected to renew his application for leave before this Court. For the reasons that follow, we would refuse leave to appeal.

8 The offending took place on 24 January 2018 when the applicant was an inmate at Barwon Prison. It was described in the summary of prosecution opening as follows:

1. Dwayne Byrne [the applicant] was born on 3 December 1992. At the time of the alleged offending he was aged 25.
2. Rami Marcus was born on 11 December 1991. At the time of the alleged offending he was aged 26.
3. The [applicant] and [Marcus] were both in custody in the Melaleuca Unit at Barwon Prison. Prisoners in the Melaleuca Unit are held in single cells. They have no contact with other prisoners.
4. In September 2017 the [applicant] and [Marcus] applied to have contact with each other. The application was assessed. Contact was permitted.

1. On 24 January 2018 at about 11.15am the [applicant] was in Exercise Yard 6 (the yard). He was pacing up and down the yard. [Marcus] entered the yard. They greeted each other by touching hands in a friendly gesture. This was their first day of contact. They began to walk up and down the yard together. They were talking to each other as they walked.
2. [Marcus] put his arm around the [applicant]. It appeared to be a friendly gesture. They walked a few steps. The [applicant] without warning punched [Marcus] to his face with a clenched fist. It was a round arm blow delivered with great force. [Marcus] did not see the punch. He immediately began falling to the floor. The [applicant] punched him again as he fell. [Marcus] did not move after hitting the floor.
3. The [applicant] leant over [Marcus] and repeatedly punched him with both fists to the face and upper body. He punched him about [seven] times. [Marcus] remained motionless on the floor during the attack.
4. The [applicant] stood up. He kicked [Marcus's] head. The kick was delivered with substantial force. [Marcus] remained motionless on the floor. His arms remained by his side. The [applicant] walked away.
5. About 10 seconds later the [applicant] approached [Marcus] who had not moved. The [applicant] delivered 3 forceful punches to [Marcus's] head. The [applicant] again walked away.
6. About 14 seconds after the last punch [Marcus's] arms began to move. The [applicant] walked to the other side of the yard. He washed his hands at a basin and dried them with a paper towel.
7. A short time later [Marcus] raised his head. He tried to stand up. The [applicant] approached him. [Marcus] was unable to stand. He slumped back onto the floor. The [applicant] placed his hand on [Marcus's] shoulder and said something to him. The [applicant] again walked away. He continued pacing the yard.

1. A short time later prison officers entered the yard. The [applicant] approached the prison officers who told him to place his hands out in front of him. He did so. He was handcuffed. He was taken from the yard and escorted to Holding Cell 1. He was strip searched. A homemade knife or 'shiv' dropped out of his clothing. This was seized (summary charge 6 - carry a prohibited weapon).

1. Prison officers approached [Marcus] who was sitting up against a wall of the yard. He was bleeding from his head. They administered first aid. Medical staff arrived. He was taken to the medical room for further assessment. An ambulance was called. He was taken to Geelong University Hospital.
2. A doctor examined [Marcus] at the Emergency Department. He sustained the following injuries. Extensive left facial fractures. These included a 'tripod' fracture which was a four part fracture involving the bones that form the cheek, the eye socket and extending into the nerve canal in the cheek under the eye. Fractures to the left sphenoid bone that forms the middle part of the base of the skull, part of the base of the skull and back of the eye socket. The 'tripod' fracture was unstable as part of the eye socket and cheek bone were floating within the face. Extensive left sided facial bruising and multiple small lacerations. Bleeding to the white part of the left eye. A fractured nose. Fractures to the right cheekbone. Fractures to the left and right jaw. The jaw fractures were unstable. Most of the fractures were open. Surgery was performed (charge 1 - intentionally causing injury).

1. The [applicant] declined a police request to be interviewed.

9 At the outset of his reasons for sentence,[5] the sentencing judge recorded that the applicant had been held since early 2017 in a high security environment at Barwon Prison. More particularly, he had been locked in a single cell 23 hours a day. The judge flagged the harsh nature of these conditions as a consideration to which he would return.

10 His Honour then described the offending and characterised it as a brutal and extremely violent attack. He detailed the extensive facial injuries suffered by the victim.

11 His Honour noted the applicant's plea of guilty which although not early was 'important'.

• apart from the convictions for violence to which we have already referred, the applicant had committed many other violent and weapons offences stretching over the previous 10 years with convictions in the Children's Court, Magistrates' Court and County Court;
• the applicant had served some 17 sentences involving youth detention and jail terms;
• the applicant's prospects of reform were grim;
• the offending was a very serious example of the crime of intentionally causing injury by reason of the severity of the injuries inflicted and the unprovoked, vicious and sustained nature of the assault;
• the attack evidenced the applicant's ongoing propensity for violence;
• the seriousness of the offending was further aggravated by the fact it occurred in prison;
• given the applicant's history, real weight must be given to the factor of specific deterrence;
• the applicant had suffered a childhood of deprivation and abuse described in further detail by John Dixon J on the occasion of the applicant's sentence for attempted murder;[6]
• in consequence the applicant was substantially institutionalised although he retained contact with his daughters:

Your counsel here calculated that you have been in the community about eight months since 2011. You have had, as she also calculated and I have mentioned, many youth justice sentences prior to that period of 2011. There is no doubt your impoverished upbringing, your exposure to violence, to drugs and alcohol abuse, homelessness and institutional care and incarceration have left a deep mark on you.

Your capacity to deal with ordinary human interactions is very poor. Your current circumstances in custody entrench this. You are isolated in prison, kept in a single cell for 23 hours a day. You are institutionalised; that is the sad truth.

What remains important to you and is your one glimmer of hope is your two daughters. You became a father as a teenager. You have remained in touch with your children notwithstanding your difficulties in incarceration. In short, your daughters mean a lot to you. There are regular visits and they are your only interest or interaction that you have with normal community or family life. Your sister, to her credit, maintains your contact.[7]

• a psychologist's report supported the conclusion that the applicant's isolation in 23 hour lockdown was adversely affecting his mental stability;
• the applicant had significant diagnoses of major depressive disorder, general anxiety disorder with panic and claustrophobia, and post-traumatic stress disorder arising from violence in his childhood. He had suffered from drug-induced psychosis and a psychotic disorder in the past and from stimulant-use disorder which was in remission in prison;
• of concern was the development of features of borderline personality disorder and anti-social personality disorder making re-adjustment into the community very problematic. The sentencing judge observed 'The key is of course over time by settled behaviour to move into other parts of the prison and the regime might benefit you';[8]
• the applicant's frail mental health deserved mitigatory concern but also raised a risk to the community of ongoing violence;
• denunciation, general deterrence and specific deterrence were important sentencing considerations. There was some prospect of rehabilitation but it was 'grim';
• the key consideration was the principle of totality. The same weight could not be given to it as had been given to it previously when the applicant was younger and last came before the Court for sentence;
• some cumulation and a re-fixing of the applicant's non-parole period was necessary;
• overall punishment must be moderated appropriately because of the applicant's age and the harsh circumstances of his incarceration.

13 The central submission advanced on behalf of the applicant upon the hearing of the application for leave to appeal was that the totality of the sentence imposed must be assessed in the context of the circumstances in which the applicant has been held in custody.

14 In particular, the applicant had been the subject of 23 hour a day lockdown for some 14 months at the date of sentence and continued to be the subject of that regime, although there were prospects that it would be relaxed.

15 We accept that the burden of imprisonment upon the applicant has been, and is likely to be, more burdensome than it is ordinarily, both by reason of the objective harshness of the regime under which the applicant is held and because he is psychologically fragile.

16 Further, we accept that the applicant can also call in aid his plea of guilty, his personal background, his psychological difficulties and the fact that his relationship with his daughters coupled with his age raise at least some possibility that he will be motivated to rehabilitate.

17 Nonetheless, it is apparent that the sentencing judge squarely addressed each of these issues and correctly identified the key consideration in sentencing the applicant as being the principle of totality.

18 As the respondent submitted, the applicant's argument is essentially that insufficient weight was given to a particular factor in the sentencing synthesis.

19 The central difficulty confronting the applicant is that there were significant factors favouring a stern penalty in his case.

• The injuries inflicted were severe, being, as Priest JA noted, at the very high end of the range for offending of this kind.[9]
• The attack comprising the offending was a particularly vicious and deliberately brutal one.
• The offending occurred in prison.
• The applicant's record demonstrates an ongoing propensity to commit violent offences of a serious nature.
• The psychological frailty called upon in aid of the plea itself reinforces the conclusion that the applicant has a serious propensity to act violently. It carries with it an increased need to give weight to protection of the community.[10]
• The applicant had poor prospects of rehabilitation.
• When the applicant's offending is viewed in the light of his prior criminal history, and its prison context is recognised, it necessarily gives rise to considerations of denunciation, general deterrence, specific deterrence and protection of the community.

20 We respectfully adopt the observations of Priest JA as to the significance of the applicant's demonstrated propensity for serious violence.[11] His Honour concluded:

As against the scant factors going in mitigation, the present offence involved extreme violence in a custodial setting, perpetrated by a man with a history of violence, then undergoing sentence for an earlier offence of extreme violence. Quite clearly, the applicant's crime was a grave example of the offence of intentionally causing injury - by a hair's breadth falling short of intentionally causing serious injury - accompanied by a number of unpleasant and unsettling features. By any measure, the applicant's attack on Marcus was vicious, and the injuries caused very severe.

Proportionality and totality were both important principles that required reflection in the sentence imposed. The application of those principles, however, needed to be informed by the objective gravity of the applicant's crime; general and specific deterrence; denunciation; the applicant's poor prospects of rehabilitation; and, given his violent propensities, the need to protect the community.[12]

21 It is also relevant that the applicant's lockdown has been the product of his own behaviour. In particular, an assault of the kind here in issue gives rise to questions of protection of the community including obvious and significant issues of ongoing duty of care to prison staff and other prisoners. Whilst the burden of the circumstances in which the applicant has been held must be acknowledged, the origin of that burden must moderate the mitigatory effect which can be given to it. It is also relevant that the applicant's circumstances within the prison system may change.

22 Finally, the prison context in which this sickening assault took place necessarily requires substantial weight to be given to the factors of general and specific deterrence.

23 When these matters are placed in the balance, we are not persuaded that it is reasonably arguable that the sentence imposed on the charge of intentionally causing injury was manifestly excessive or that the order for cumulation is excessive and breaches the principle of totality. In all the circumstances of the case, material cumulation was appropriate although it was also necessary to provide for meaningful concurrency as the sentencing judge did. The totality of the sentence imposed was not disproportionate to the totality of the offending in issue.

24 We add for completeness that we see no arguable error in the non-parole period imposed by the sentencing judge. Having regard to the applicant's record, a practical judgment was required as to an appropriate period. The non-parole period provided for was comfortably within the appropriate range.

25 Accordingly, the application for leave to appeal against sentence will be refused.

[1] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.

[2] Control of Weapons Act 1996, s 5AA. The maximum penalty is 2 years' imprisonment.

[3] See R v Byrne [2016] VSC 580 (John Dixon J); on appeal against conviction, Byrne v The Queen [2017] VSCA 253 (Priest, Beach and Hansen JJA).

[4] See DPP v Byrne (County Court of Victoria, Judge Taft, 29 March 2017).

[5] DPP v Byrne [2019] VCC 1771 (Judge Mullaly) ('Sentencing Reasons').

[6] See R v Byrne [2016] VSC 580, [17]-[18], [20] (John Dixon J).

[9] Byrne v The Queen (Supreme Court of Victoria, Priest JA, 23 April 2020) [14] citing Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313, [54] (Osborn and Priest JJA).

[10] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ); Bugmy v The Queen (2013) 249 CLR 571, 595 [44]. See also Leishman v The Queen [2019] VSCA 270, [22].

[11] Byrne v The Queen (Supreme Court of Victoria, Priest JA, 23 April 2020) [17]-[19] and the authorities there referred to - R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA); Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ); Leishman v The Queen [2019] VSCA 270, [19], [22]; Bugmy v The Queen (2013) 249 CLR 571, 595 [44].

[12] Byrne v The Queen (Supreme Court of Victoria, Priest JA, 23 April 2020), [22]-[23].