DPP v Byrnes [2005] VSCA 63

2 The Director of Public Prosecutions ("the Director") has appealed against the sentences imposed on 19 November 2004 by a judge of the County Court sitting at Geelong on David Gregory Byrnes ("the respondent"), who is now aged 19 years, after he pleaded guilty on 6 September 2004 to one count of detaining a person for the purpose of sexual penetration contrary to s.55 of the Crimes Act 1958 ("the Act") (count 1) and one count of sexually penetrating a child under sixteen years of age contrary to s.45(2)(a) of the Crimes Act 1958 (count 2). The maximum custodial penalty for the first offence is ten years. In respect of the second offence, since the victim was a child under the age of ten years, the maximum custodial sentence is 25 years. The respondent admitted 16 prior convictions from eight court appearances between 1999 and 2004, including a conviction in 2000 for committing an indecent act with a child under 16 years of age as well as eight convictions for violent offences, including unlawful assault and assault with a weapon. He has not, however, been sentenced previously to a term of imprisonment. Well after the hearing on 6 September 2004 of the plea in mitigation, on 12 November 2004, his Honour ordered at the respondent's request that he be assessed for suitability for detention in a youth training centre ("YTC"). In his report to the court dated 17 November 2004, the manager of the Juvenile Justice Unit for the Melbourne Central Courts, Stephen Riordan, assessed the respondent as not being suitable for such a sentencing disposition. On 19 November 2004, his Honour sentenced the respondent to six months' imprisonment in respect of count 1 and three years and six months' imprisonment in respect of count 2. The learned sentencing judge made no order for cumulation and thus, the total effective sentence imposed was three years and six months' imprisonment. His Honour directed that the respondent serve a minimum term of two years' imprisonment before becoming eligible for parole. By notice filed on 20 December 2004, the Director has appealed against this sentencing disposition. The notice states that the appeal is based on two grounds; first, that the sentences are manifestly inadequate and, secondly, that his Honour erred by failing to find that the respondent was liable for mandatory registration under the Sex Offenders Registration Act 2004. At the outset of the hearing of the appeal, however, Mr McArdle for the Director informed the Court that he would not pursue the latter ground.

3 I turn to summarise the circumstances of the offending. On 21 May 2004, at approximately 6 p.m., JS ("the victim"), who was then aged five years, was at the Belmont Plaza Shopping Centre with his mother. While they waited in a queue to be served, the victim told his mother that he needed to go to the toilet urgently. Because the boy was then in the process of being toilet trained, his mother told him to go quickly to the male public toilets a short distance away while she arranged to have her purchases minded at the store so she could follow him. When the boy reached the toilet block, he entered a cubicle. The respondent, who was sitting on a nearby bench, saw him as he was leaving his mother and followed him into the toilets. As the child was leaving the cubicle, the respondent forced him back inside and locked the door behind him. When a third person entered the toilets, the respondent waited until he left and then instructed the boy to turn around, pulled down his trousers and inserted his penis into his anus. The victim immediately screamed out in pain and began to cry. He was later examined in hospital and found to have a bruise on his right arm and on his abdomen and a superficial laceration at his anal verge. When the child screamed, the respondent removed his penis and left the cubicle. At this point, two men entered the toilets and heard the victim crying. One of them saw the respondent leave the cubicle where the offence occurred. The respondent pushed past them and one of them gave chase, but the respondent managed to elude him, escaping into parklands adjacent to the shopping centre. He was arrested there on the following morning by police and, when interviewed by them later that day, made full admissions. Mr Moore, who appeared at the hearing of the plea in mitigation on behalf of the Crown, said that the record of interview showed that, although the respondent said he knew what he did was wrong, he displayed no remorse. The respondent told the police that he often thought about committing sexual offences and that he could not always control his urges in that regard.

4 The respondent's personal circumstances were these. He was born in Kempsey in New South Wales and is the youngest of four brothers. He had a troubled and unstable upbringing. His parents were unemployed alcoholics who were neglectful and occasionally violent towards each other. The family lived an itinerant existence, which resulted in the respondent's schooling being often interrupted. In 1995, the Department of Human services became involved with the family and the respondent, who was then aged nine years, was assessed as having a mild intellectual disability. In 1997, he was deemed eligible under the Intellectually Disabled Persons' Services Act 1986 to receive a disability support pension as a result of his intellectual impairment. In July 1999, when he was aged thirteen years, he was diagnosed by a child psychiatrist as suffering from Attention Deficit and Hyperactivity Disorder and Opposition Defiance Disorder and was prescribed Ritalin and Dexamphetamine to calm him. The respondent, however, did not always keep to the strict regime of tablet intake and, at the time of the offending, was taking less than the prescribed dosage. In 2000, when he was aged 14 years, the respondent was removed voluntarily by the Department of Human Services from his parents' care and placed in a foster home. Due to his delinquent behaviour, however, this arrangement was terminated and the respondent was placed in a supervised set of units in Anglesea. In 2001, his parents formally relinquished their parental rights and responsibilities towards him and thus, he became a ward of the State. During that year the respondent was expelled from school for antisocial and inappropriate sexual behaviour and was later moved to a residential facility in Colandra, where he was placed under 24-hour supervision. Upon attaining the age of 18 years, however, being no longer subject to the guardianship order, the respondent left the residence for Queensland. Whilst there, he was charged by police with two offences that are not relevant for present purposes. He returned to Victoria a short time later.

5 Since his mid-teens, the respondent has been a chronic user of cannabis and alcohol and claimed that he had been drinking heavily for several hours prior to the offending and that he was drunk when he committed the offences.

6 At the request of the learned sentencing judge, on 7 October 2004 Dr Senadipathy, a forensic psychiatrist, examined the respondent at Port Phillip Prison and in his report to the court of 11 October 2004 relevantly said: " ... the respondent's thinking was normal and there was no evidence of disorders of perception. He impressed me as a man of probable borderline low intelligence, but not significantly intellectually impaired. He had a good vocabulary, was able to think abstractly and has a good knowledge of matters relevant to his way of life and court procedures." Dr Senadipathy continued that, whilst the respondent was well aware of his own rights, he "seems to disregard the harm to the victim". He concluded that the respondent "has a very poor prognosis and a high risk of continuing to re-offend. Reform would theoretically be possible, but practically not easy to achieve. ... rehabilitation in a custodial setting would be appropriate". In his sentencing remarks, his Honour noted that "this is a particularly harsh judgment but it seems ... that it is not an inaccurate assessment".

7 At the hearing of the plea in mitigation, a victim impact statement prepared by the victim's mother and a report by a child psychologist, Ms Jan McLeod, dated 7 August 2004, were tendered in evidence. Ms McLeod concluded in her report that the victim had "developed many symptoms of a post-trauma reaction, such as sleep difficulties, including nightmares, hyper-vigilance ... and increasing anxiety and need for reassurance from his mother".

8 I now turn to consider the Director's claim that the sentences are manifestly inadequate. In support of this ground, Mr McArdle submitted that the short length of the sentences imposed on the respondent demonstrates that his Honour undervalued the gravity of the offences and the respondent's offending conduct, as well as the impact of his criminal acts upon his very young victim. Counsel pointed out that the offending involved a violent sexual act that took place in a public toilet and, although his Honour correctly described the respondent's conduct as "(d)epraved, cruel and quite ruthless and stated that it "merits stern punishment", he failed to reflect this in the sentencing disposition. Counsel further claimed that his Honour's sentences did not reflect sufficiently the applicable sentencing principles of general and specific deterrence or the respondent's very bad criminal history. It was also put by Mr McArdle that it was apparent that the respondent felt no remorse for his offending conduct and this was one of the reasons that the principles of specific deterrence and protection of the community were particularly relevant to the sentencing disposition in this case. It was further contended that the respondent's mental problems, to the extent that they existed, did not moderate the operation of these sentencing principles, given Dr Senadipathy's conclusion, which his Honour accepted, as I have said, that the respondent was not "significantly intellectually impaired" notwithstanding that he was of "low borderline intelligence" and given that the respondent recognised, as he himself said, that what he did was wrong. Counsel also maintained that youth was not a significant mitigating factor, given that, in the context of this case, particularly in the light of the respondent's poor prognosis, his youth must be subjugated to the sentencing principles to which I have just referred, as was recognised in Director of Public Prosecutions v. Lawrence[1]. Furthermore, said counsel, apart from the respondent's terrible personal circumstances, his admissions to the police and his plea of guilty, there were few mitigatory factors.

9 In the circumstances, Mr McArdle submitted, whilst recognising the constraints that are placed on Crown appeals by the authorities, the sentences of imprisonment imposed here are so plainly inadequate that they demonstrate error of principle by his Honour in the exercise of his sentencing discretion such that the respondent should be re-sentenced.

10 Mr Holdenson for the respondent submitted, on the other hand, that the impugned sentences do not reflect relevant error by his Honour. Counsel argued that the respondent's full and frank confession to the police and his plea of guilty at the earliest opportunity entitled him to a significant sentencing discount. Moreover, said Mr Holdenson, the respondent's terrible personal life, his mild intellectual disability and his young years meant that it was open to his Honour to moderate, as he said he would, the operation of general deterrence. In developing this argument in the course of his oral submissions, Mr Holdenson said that his Honour's sentencing disposition was or could be explicable by his acceptance of the fact that the respondent's moral culpability for the offences was significantly reduced, given that he was accepted as a person with intellectual disability for the purposes of the Intellectually Disabled Persons' Services Act 1986[2] and because, in light of his tragic background, he was never placed in a position where he would have been able to appreciate what behaviour was unlawful or inappropriate or, at least, the degree to which that might be the case. Because of the respondent's position in that regard, said counsel, it was appropriate for his Honour to moderate the operation of the principle of general deterrence. Mr Holdenson pointed out that, in his sentencing reasons, the learned sentencing judge referred to the respondent's "lamentable family background in [his] formative years" and to his "disordered mental condition" and, quite properly, said counsel, concluded that these matters justified "some moderation of the principles of deterrence". Further, said Mr Holdenson, his Honour effectively went on to say that the respondent's youth was also relevant to this matter.

11 Counsel next submitted that it was appropriate for his Honour to impose only a relatively short non-parole period so as to give the respondent a relatively lengthy period of parole under supervision, thereby ensuring that he received the benefit of relevant services and did not spend an undue period of time in an adult prison. It was said that, in arriving at this aspect of the sentencing disposition, his Honour must have given effect to that part of the Riordan report where the author says that it is his "understanding" that "for intellectually disabled persons there is no specified therapy for sexual offending (sic) whilst a person is in any custody. However, once released on parole, it appears that the State-wide Forensic Health Service can provide this service". It was said for the respondent that, in adopting that aspect of the report, his Honour maximised the respondent's prospects of rehabilitation and minimised the period during which he was to be subjected to the vagaries of adult prison.

12 Mr Holdenson then relied, as a springboard for his next oral submission, on what transpired between Bench and Bar when the pre-sentence report was sought. Counsel claimed that the Director's appeal was inconsistent with his attitude to the sentencing disposition that existed shortly after the hearing of the plea in mitigation, when, said counsel, the prosecutor implicitly accepted that a sentence in the order of three years' imprisonment would be at the top end of the range. More specifically, Mr Holdenson relied on the following exchange that took place between his Honour and counsel. After his Honour indicated that he would order a report as to whether the respondent was suitable for YTC detention, this was relevantly said:

His Honour: I take it you've got nothing to say about that ... ?

Prosecutor: I can indicate what the Crown's instructions are in relation to that; we don't oppose a report being obtained, but of course the Crown reserves its right to make submissions subject to the outcome of that report.

His Honour: ... would the Crown want the 18-year-old boy in the adult prison system?"

Prosecutor: Unlikely, your Honour, but it wants to see what the report has, given the nature of the ...

Counsel was then cut off by his Honour making the order.

13 As I have said, Mr Holdenson submitted, on the basis of this exchange, that the Crown essentially conceded that a three-year term of imprisonment would be a sentence at the top end of the range of sentencing dispositions properly available to his Honour.

14 Mr Holdenson further submitted, as I understood him, that if there was absence of remorse on the respondent's part, this did not operate as an aggravating factor. Presence of remorse, said counsel, can be a mitigating factor, but its absence cannot be treated as going to aggravation. So much may be accepted. But, as I have explained, the Crown did not seek to rely on the lack of remorse as a matter of aggravation, but only as pointing up an aspect of the character or psychological make-up of the respondent in support of its submission that the sentencing principles of special deterrence and protection of the community were of considerable importance in the sentencing disposition. Given the context, I think that the prosecution's reference to the respondent's lack of remorse was not impermissible.

15 In the circumstances, Mr Holdenson concluded, it was very much open to his Honour to impose the impugned sentences and, therefore, it was put, it is not open to this Court to treat them as being manifestly inadequate. It was submitted that this case does not fall into the category of cases in respect of which it is appropriate for the Director to bring an appeal, or alternatively, the Court should exercise its discretion not to intervene. In that context, Mr Holdenson pointed out that it was obvious from his Honour's sentencing remarks that, in determining the appropriate sentence, he balanced aggravating and mitigating factors, plainly taking into account the relevant sentencing principles, and applied his instinctive synthesis to these matters to arrive at the sentencing disposition.

16 Counsel then argued that, even if the Court were to set aside the sentences, given the principle of "double jeopardy", it would have to impose a substantially lesser sentence than the one that might otherwise be imposed, with the result that the Court would be compelled to reimpose the same sentences. In the light of this, it was said, the Court should decline to intervene.

17 It is convenient to deal first with Mr Holdenson's submission that the Crown conceded that a sentence of three years or thereabouts on count 2 was at the top end of the relevant range. In my view, for the following reasons a fair reading of what was said at the relevant time does not disclose the concession for which counsel contends. First, it is relevant to look at the context in which the prosecutor made the relevant statement. The discussion between the Bench and Bar occurred, as I have said, on 12 November 2004, well after the conclusion of the hearing of the plea in mitigation that took place on 6 September 2004. It seems that the matter came before his Honour by way of a (belated) application by the respondent's counsel for an order that the abovementioned pre-sentence report be obtained. In any event, it is apparent from the transcript that the application was "rushed on" and that, at the time, the prosecutor was about to appear in another court. At the outset of this application his Honour seems to have been concerned that the respondent was not present in person, but eventually said that he would make the order sought on the respondent's behalf. It was then that the relevant discussion between his Honour and the prosecutor took place. Next, I think that, on a proper interpretation of what was relevantly said, all that his Honour put to the prosecutor was a general proposition that the Crown would not want to see an "18 year old boy" in an adult prison on the implied assumption that the YTC report found him suitable for such a disposition. It is not surprising that the prosecutor said that it was "unlikely" that the Crown would take up such a position, but that it wanted to see the report before it could sensibly or responsibly take the matter any further. I think it is clear enough that the prosecutor was responding to his Honour's general proposition that an 18 year old man who was suitable to a YTC detention should not, on the face of it, be sent to an adult prison. Furthermore, and importantly, I think, a critical premise on which his Honour's question was put, namely, the respondent's being approved for YTC detention, did not materialise. It is true that his Honour and the Crown, understandably, recognised the disturbing nature of the case, but, for the reasons I have given, I think it is going too far to say, as Mr Holdenson has done, that the Crown made the concession for which he contends.

18 I would also reject Mr Holdenson's submission that his Honour might well have considered, or that it would have been open to his Honour to consider that, in light of the respondent's intellectual disability and terrible personal circumstances, his moral culpability for the offence was reduced such as to warrant the sentences imposed. It may be accepted, for present purposes, that the respondent suffered some impairment to his intellectual process, as seems to have been accepted by those administering the Intellectually Disabled Persons' Services Act and by those in the Department of Human Services who wrote the reports concerning the respondent of 4 January 2000, 31 October 2001 and 10 February 2002, which were before his Honour. But the respondent said that he was well aware that what he did to the young victim was wrong and that the victim cried out because he had hurt him. More generally, the respondent also said, as I have noted, that he realised it was wrong to penetrate children sexually, but that he found it difficult to control his urge to do so. Importantly, I think, his Honour sentenced the respondent on the basis that he accepted the only report on the issue from a psychiatrist, namely Dr Senadipathy, more particularly, as I have noted, that the respondent was "not significantly intellectually impaired". It should also be noted that Dr Senadipathy also said in his report that the respondent's "thinking was normal and there was no evidence of disorders of perception ... [and that the respondent's] attention deficit hyperactivity disorder and intellectual disability did not contribute to antisocial behaviour that characterised this young man's personality". I note for completeness that Mr Riordan's views as to the availability of relevant services to the respondent while in prison and on parole were no more than "his understanding" of these matters and that in any event the Director did not on this appeal argue for any particular non-parole period.

19 In analysing the issues raised by this appeal, it is necessary to acknowledge at the outset the restrictions that apply to the Court's power to allow Director's appeals and the manner of its exercise if such appeals are allowed. The applicable principles are well known and it is not necessary to repeat them here. It is sufficient only to refer to R. v. Clarke[3], where they are collected, and to the observations of the learned President in DPP v. Gardner & Coates[4] and DPP v. Low[5], which highlight that the constitutional responsibility for sentencing the offender lies with the trial court. I fully recognise that the task of the sentencing judge in this case was a particularly difficult one given the respondent's personal and other problems, including, obviously, his low level of maturity. All these matters plainly, and understandably, troubled his Honour, who approached his task with considerable sensitivity. But having said that, and acknowledging his Honour's considerable experience in this area, I consider that the impugned sentences reflect error of principle by his Honour in the exercise of his sentencing discretion. It is true that, as Mr Holdenson submitted, in his sentencing reasons his Honour referred to the relevant matters of aggravation and mitigation and to the applicable sentencing principles, but, in the end, I think that he failed to reflect the gravity of the offence and the offending conduct, and the applicable sentencing principles, in the sentences that he imposed. The offence charged by count 2, for example, is a very serious offence that reflects the recognition by Parliament of the need to protect children, particularly young children, from sexual and other relevant forms of abuse by those who have moral or physical control or influence over them. In recognition of the need to provide such protection to young children, and to deter those minded to harm them, Parliament has prescribed a sliding scale of maximum penalties for that offence, the highest being 25 years' imprisonment where it is committed against children under the age of 10 years. Further, the offending conduct in this case was particularly grave, involving stealth and a violent sexual act against a very young child who has been obviously harmed by the experience, and it seems from the material that the effect of this on his psychological make-up will continue for some time. It is also plain that the sentencing principles of general and specific deterrence, condemnation by the court of such conduct and the protection of the community are of paramount importance in the sentencing disposition. Potentially, the respondent's young years may have been regarded as a major mitigating factor, but in the circumstances of this case, while it was not irrelevant to the sentencing disposition, it had to be subjugated to other considerations such as the importance of the sentencing principles to which I have referred, particularly where, as here, the respondent has a very serious criminal history and does not appear to have reasonable prospects of rehabilitation at this stage. I should say that I consider that the principles enunciated in and do not operate here to moderate the weight that should be given to the sentencing principles to which I have referred, given that the respondent did not suffer a recognisable psychiatric illness and that, in any event, there is nothing in the material that shows that the symptoms of his mild intellectual disability bore on his moral culpability in committing the offences. In this Court was concerned with the effect of a serious psychiatric illness not amounting to insanity on the sentencing disposition. In that case, the applicant suffered from schizophrenia and this Court rejected the conclusion of the sentencing judge that the applicant "knew and appreciated what he was up to". The principles in were, in a sense, a development of what this Court said in , where the offender was suffering from paranoid psychosis or paranoid schizophrenia at the time he committed the offences and, in the circumstances, the Court held that he was not a suitable vehicle for general deterrence. In the present case, however, the applicant did not suffer a serious psychiatric illness and, plainly enough, knew that what he did was wrong. Importantly, as I have said, the evidence did not relate such mental impairment as the applicant may have had to the offending conduct. For completeness, I note, in this regard, Dr Senadipathy's conclusion to which I have referred, namely, that the respondent's intellectual disability did not contribute to his antisocial behaviour.

20 It is true, as Mr Holdenson pointed out, that the respondent was entitled to an appropriate sentencing discount for his frank admissions to the police and for his early plea of guilty which, as counsel highlighted, considerably facilitated the course of justice. But even if one makes allowance for these factors and other matters personal to the respondent, I consider that it is not reasonably possible to reconcile the impugned sentences with the gravity of the crimes. To arrive at the impugned sentencing dispositions his Honour must have given insufficient weight to the matters referred to by Mr McArdle and given undue weight to the respondent's youth and possibly his intellectual disability. The error was, I consider, of sufficient magnitude to constitute an error of principle justifying the setting aside of the sentences imposed on counts 1 and 2. Consequently, I would allow the Director's appeal and set aside those sentences. It follows that the sentencing discretion has been re-opened and the respondent now falls to be re-sentenced by this Court. In re-sentencing him in the light of the matters to which I have referred, I take into account the principle of double jeopardy. I do so, however, bearing in mind the observations of Callaway, J.A. in DPP v. B.A.B.[11], where his Honour said:

"[double jeopardy] does not require us to impose a sentence at or near the bottom of the range. All it requires us to do is to give the respondent an adequate discount for having to stand for sentence twice at the instance of the Crown. To give him more than that would be unwarranted and contrary to the public interest." At [3].

Thus, I would impose the following sentences of imprisonment: two years and six months on count 1 and six years on count 2. I would make no order for cumulation.

1 Thus, the total effective sentence would be six years' imprisonment. In the light of the respondent's criminal history, the lack of reasonable prospect of rehabilitation and the relevant sentencing principles, I would order that the respondent serve four years' imprisonment before being eligible for parole.

21 I agree that the appeal should be allowed, for the reasons given by Chernov, J.A., and that the respondent should be sentenced in the manner which his Honour proposes. Like Chernov, J.A., I agree that this was a case where the sentencing judge was faced with a particularly difficult sentencing task. There is no doubt that the respondent is impulsive and socially ill-adapted and that his personality, consistent with his family environment and background, is maladjusted. Like Chernov, J.A., I cannot agree with the suggestion made on his behalf in this Court that the evidence required the judge, in assessing an adequate penalty, to moderate principles of general deterrence, or that this is the sort of case where the principles referred to by this Court in Tsiaras can appropriately be applied.

22 Furthermore, I agree with the proposition that the passing comments made by the prosecutor to the judge on 12 November 2004 were not intended to be, nor were they, a concession by the Crown that a sentence "in the order of three years' imprisonment" would be sufficient to punish these crimes.

23 I agree that the appeal should be allowed and the respondent re-sentenced for the reasons given both by the President and by Chernov, J.A.

24 The formal orders of the Court are as follows.

The appeal is allowed.

The sentences imposed by the County Court on 19 November 2004 are set aside and in lieu thereof this Court orders that the respondent be sentenced as follows:

On count 1 - two-and-a-half years' imprisonment;

On count 2 - six years' imprisonment.

The total effective sentence will therefore be one of six years' imprisonment.

We order that the respondent serve a period of four years before becoming eligible for parole.

Pursuant to s.18 of the Sentencing Act 1991 we declare that the respondent has served 292 days of the sentences that we have imposed. We direct that that declaration and its details be entered in the records of this Court.

A certificate pursuant to the Appeal Costs Act is granted to the respondent.

[1] [2004] VSCA 154.

[2] Section 3 of the Intellectually Disabled Persons' Services Act 1986 provides that "intellectual disability", in relation to a person over the age of 5 years, means the concurrent existence of - (a) significant sub-average general intellectual functioning; and (b) significant deficits in adaptive behaviour - each of which became manifest before the age of 18 years.

[3] [1996] VICSC 30; [1996] 2 V.R. 520 at 522-523 per Charles, J.A.

[4] [2004] VSCA 119 at [24].

[5] [2004] VSCA 250 at [20], [21].

[6] [1996] VicRp 26; [1996] 1 V.R. 398.

[7] [1998] 2 V.R. 376.

[8] See, for example, R. v. Vodopic [2003] VSCA 172 at [28] per Eames, J.A.

[9] [1981] VicRp 17; (1981) V.R. 155.

[10] See also R. v. Meyers [2001] VSCA 237; and R. v. Gorman, Court of Appeal, Unreported, 10 August 1995 per Hayne and Charles, JJ.A. and Crockett, A.J.A.

[11] [2002] VSCA 93 at [3].