The Queen v Byrne [2016] VSC 580

2 Attempted murder carries a maximum sentence of 25 years imprisonment.[1] Being a prohibited person in possession of a firearm carries a maximum sentence of 10 years imprisonment.[2]

3 7 February 2015 was a warm summer's night and you were out on the streets of St Kilda with your friend Kaisha Mitchell. You were carrying a small knife. At about 11:30 pm you were on Brooks Jetty on the St Kilda foreshore. Your victim, Steen Locke, was also on Brooks Jetty in the company of his friend, Rochelle Jerard. They were sitting on the edge of the jetty, feet dangling over the side, resting their arms on a lower horizontal railing. Raised voices, an apparent argument between you and Ms Mitchell, attracted their attention to you and, acting out of concern for the well-being of Ms Mitchell, they turned around and looked in your direction.

4 The key issue in your trial was whether it was in fact you who was present on the jetty that night and it is plain from the verdict that the jury was satisfied that you were there and were responsible for what subsequently occurred.

5 You said to Mr Locke 'What the fuck are you looking at?' He replied 'nothing mate' and turned away from you, redirecting his attention to Ms Jerard. For reasons that have never been adequately explained, you then armed yourself with the knife that you were carrying and you attacked Mr Locke, stabbing him six times; in the back of his head, right shoulder, right armpit, left chest wall and twice to the left shoulder. The jury was satisfied that when you stabbed Mr Locke you intended to kill him.

6 Mr Locke, a much larger man than you, was disadvantaged by the way that he was sitting while this cowardly attack took place but once he got to his feet you ran off. You left your knife embedded in Mr Locke's back. Mr Locke followed you but was bleeding heavily from his injuries and collapsed on the footpath of Marine Parade. Fortunately, emergency services responded quickly to Ms Jerard's call.

7 You and Ms Mitchell ran up to Acland Street and took a taxi a short distance to your flat via the takeaway drive-thru at McDonald's. You were arrested by the police at your flat nearby some days later and you declined to participate in either an identification parade or a record of interview.

8 When police searched your flat they found a silver pen pistol on a bedside table in the main bedroom. There is no suggestion that your possession of this pistol is related to your offending on Brooks Jetty.

9 Mr Locke was taken to the Alfred Hospital with life threatening penetrating stab injuries. Without medical intervention he could have died from the injuries that you inflicted. Mr Locke suffered from both high blood pressure and von Willebrand's disease, a blood clotting disorder similar to haemophilia. The crime scene photographs confirmed the medical evidence that he lost a considerable amount of blood. The stab wound to his chest had collapsed his lung, causing a haemopneumothorax, and he sustained a deep penetrating wound to the back of his upper neck. His condition was stabilised by a trauma surgeon in emergency surgery when his injuries ceased to be life-threatening. The surgeon achieved full surgical repair of the injuries.

10 Mr Locke described to me the significant and ongoing impact on him of your crime. Although he has recovered from his physical injuries, he carries the psychological consequences of the emotional trauma particularly in public when he is significantly affected by fear and anxiety. Your failure to take responsibility for your actions has rubbed salt in his wounds and he was particularly affected by having to relive the night when giving evidence to the jury under what he described as your smirking gaze.

11 There are a number of aggravating features of your crime:

• You had left home earlier in the evening carrying a knife with no apparent justification.
• Your attack upon your victim was completely unprovoked.
• You attacked your victim with a knife when he was unarmed.
• You attacked your victim from behind when he was sitting in a vulnerable position unable to immediately and readily defend himself.
• The attack involved a series of wounds inflicted in rapid succession when you must have appreciated that your victim was injured.
• Your victim's injuries were severe, requiring the immediate attention of emergency services, and with ongoing consequences for him.
• You attacked your victim when he looked, altruistically, to see whether Ms Mitchell was safe.

12 I accept that your offending was not premeditated. It bore the hallmarks of an impulsive act and did not involve any degree of planning. Only by good fortune did your victim avoid death and long-lasting permanent physical injury. These features of your offending mean that it is not placed in the upper range of attempted murders.

13 There is no explanation of your loss of self-control in the circumstances of the incident. Your counsel suggested that it was highly likely that intoxication and hyper-vigilance were factors in your offending. There is no evidence that you were significantly intoxicated by the consumption of alcohol or drugs when you offended apart from a general suggestion made to a psychiatrist that you had been using methamphetamine heavily between the time of your last release from prison and your arrest for this offending. I will say more about your hyper-vigilance later.

14 Mr Locke had turned away from you moments before the attack and what you should have done was to have walked away, but you did not do so. Rather, as the jury has found, you formed a murderous intention and acted on it using the knife that you happened to be carrying. In something of a frenzy you stabbed your victim multiple times. Your moral culpability for this offending is significant, falling on my assessment around the median point of the range for attempted murder.

15 You have shown no remorse for your actions, consistently insisting, even to this day, that you were not the offender responsible for the attack on Mr Locke. All you have acknowledged, as you must based on CCTV footage, is that you were in the area at the time.

16 The offence of murder strikes against the sanctity of human life which is a core value of our society. Although you do not acknowledge it, your unprovoked attack on Mr Locke in a public place with a weapon intending to kill him is very serious criminal offending that requires the imposition of a sentence of imprisonment that reflects amongst other things the gravity of your offending and the need for both general and specific deterrence.

17 Turning to your personal circumstances, you are a 23 year old man who has not had the benefit of a family upbringing. Your father died of a heroin overdose when you were two and your mother has suffered throughout your life, and continues to suffer, from significant alcohol and drug addiction. You have an older sister and younger brother. The Department of Human Services removed you from your mother's care at the age of six and you have been placed in multiple residential units and in foster homes, although at times you have been cared for by your grandmother. You frequently absconded these accommodations and returned to your mother. You were sexually abused by a maternal uncle at the age of eight or nine and soon after that abuse you experienced homelessness. You, and your mother, were serially physically abused by your stepfather until his eventual incarceration for domestic violence. By the age of 11 you were living on the streets, encouraged by rewards to engage in low-level offending. A psychiatrist has observed that you cope with the abuse that you have received by denial, suppression, and intoxication.

18 Unsurprisingly, you have not received an adequate education having not progressed past grade 6, primary school level. You were effectively illiterate until the age of 18 years, when you taught yourself to read and write in prison. You have never experienced gainful employment. Your mother, grandmother and sister provide you with some family support but your overwhelming experience has been of dysfunctional family relations, unstable housing, ongoing experiences of violence and trauma, exposure to high risk situations and negative role models. Your childhood was characterised by significant learning, social, and behavioural problems.

19 In 2009 at the age of 15, you became a father when your daughter [redacted] was born. Your daughter [redacted] was born in 2010. I was told that you love them dearly and maintain regular contact with them, including when you are in prison. Your daughters have been placed in the permanent care of your sister. Your caseworker, Ms Jackson of Jesuit Social Services, described you as highly motivated for rehabilitation by your commitment to your daughters. You also have a son, aged one, whom you have never met.

20 You started abusing alcohol and drugs at a young age and by the time you were 15 had developed a problematic Ice habit, possibly to suppress distressing thoughts and block out the trauma of your childhood. For reasons that I will come to shortly, your release from institutions into the community does not appear to have been well managed resulting in significant substance abuse in the community with consequent offending and behavioural issues. Ms Jackson invited me to accept that you have some insight into the link between your offending and substance abuse and that you are highly motivated to address this problem.

21 It is unsurprising that against your social background you have a very extensive history of interaction with the criminal justice system for offences of dishonesty, possession of weapons, violence, riot, contravening a family violence intervention order, criminal damage, and driving offences before both the Children's Court and the Magistrates Court and on occasions on appeal to the County Court. You first appeared before the Melbourne Children's Court in January 2007 and your most recent conviction was in June 2014. Over that period of 7 ½ years, you have amassed a criminal record that runs to some 18 pages from the LEAP database.

22 The significant conclusion from your past contact with the criminal justice system is that from early adolescence you have spent prolonged periods in incarceration. Your counsel informed me that he calculates that you have been out of custody for a total of around nine months over the past eight years. More significantly, you have spent a considerable part of the last three years in a long-term management placement whilst in custody. In August 2013 you were directly released from the Barwon Prison Acacia Unit into homelessness and the following five months out of custody included two suicide attempts. In April 2014, you were in the community for nine days following release from the long-term management placement at the Metropolitan Remand Centre Chartwell Unit. In December 2014, you lasted two months in the community after your release from a long-term management placement that saw you incarcerated in your cell for approximately 22 hours a day. You returned to jail on remand for this crime.

23 I accept that the consequences of your upbringing, substance abuse, and your management in custody have been quite detrimental for your prospects of rehabilitation. You experience significant anxiety around people and are constantly hyper-vigilant in public. You have ongoing difficulty in managing day-to-day tasks. Reintegration into the community could have been better managed. Unless those responsible for the rehabilitation of prisoners take stock of you and together you engage with the authorities in rehabilitation programs and the like, there is a real prospect that protection of the community from your impulse-driven, egocentric, and unmoderated behaviours will not be achieved. In that event, you will live an institutionalised life.

24 A psychiatrist, Dr Adam Deacon, who prepared a report in 2014, assessed you as suffering a complex trauma disorder with some post-traumatic stress disorder symptoms secondary to your abuse. He did not consider psychiatric review to then be warranted, although he considered long-term therapy likely to be beneficial and management of your mental health by a GP to be desirable. That has not occurred.

25 In 2014, you were also assessed by a neuropsychologist, Dr Robert Bourke, who found no evidence of an acquired brain injury or any significant cognitive impairment. You demonstrated average intellectual abilities and age-appropriate performance on assessment of various psychological abilities. At that time you presented with psychological distress symptoms consistent with stress and anxiety and Dr Bourke assessed your behavioural difficulties to be the consequence of long-standing difficulties with your previous diagnosis of attention deficit hyperactivity disorder and long-standing personality traits.

26 I have already mentioned your periods of incarceration as a long-term management prisoner. Your continuing poor behaviour in prison has earned you a maximum security rating resulting in accommodation at various times in the Acacia Observation Unit, Acacia Management Unit and the Banksia Management Unit where you are presently held. You have suffered the loss of some privileges in response to incidents and, as a result of assaults on prison officers, you are usually handcuffed when moved from your cell. You are permitted no more than 2 to 4 hours per day out of your cell and denied physical interaction with other prisoners. In this accommodation, access to study and rehabilitation programs is severely constrained.

27 Following the jury verdict you were assessed by another psychiatrist, Dr Ong. You appear to have acknowledged to Dr Ong, quite appropriately, that you get 'nowhere by carrying on' and need to 'pull [your] head in' to improve your circumstances in prison and possibly gain access to rehabilitative programs and services. You have apparently been informed by Assistant Commissioner Brendan Money that you will be moved away from the management units once sentencing is finalised. That is an opportunity for you that you must seize.

28 Dr Ong recorded the consequences of your incarceration in long-term management and direct release into the community from such circumstances as I have already described. Dr Ong assessed your history as suggestive of elements of post-traumatic stress disorder, including hyper-vigilance, sense of foreshortened future, anxiety and re-experiencing past abuse. He described your substance abuse as self-medication for distress. He recommended that you be more closely monitored by prison psychiatric services, and warned that continued exposure to prolonged periods of management would not be helpful for your mental state or your prospects of rehabilitation. I invite the Office of Corrections to carefully consider his report.

29 I accept your counsel's submission that you cannot be held responsible for your impoverished childhood. I take into account in your favour that the significant negative influences in your life that I have already referred to were imposed on you when you were a child, unequipped with the necessary life skills and familial support to appropriately process and resist such influences. The consequence is that through no fault of your own you have become moderately institutionalised, resulting in an inability to function within society on the occasions of your release from custody. It must be appreciated that the parole system is essential to the rehabilitative function of imprisonment and that your case well illustrates that the system is not likely to work when prisoners are released at the end of a sentence from prolonged periods of management directly into the community with neither transitional education and training nor proper support.

30 I have not been persuaded that you have reasonable prospects of rehabilitation at present. Ms Jackson invited me to conclude that you have resilience and much to offer the community. She suggested that you remain highly motivated to understand and address the reasons for your offending and that you are committed, particularly through gaining insight into your own life and from your love for your children, to finding a path to rehabilitation. That is a good start. It is difficult to see that you have demonstrated significant effort in attempting to change your life around, although I accept that the circumstances in custody have not been helpful. It is equally apparent that you contribute to the circumstances in which you find yourself and you must find positive experiences in prison to aid your rehabilitation.

31 Your counsel urged me to sentence you on the basis that you will complete the full term without being offered parole. I decline to approach my task in that way. Your opportunity to earn parole is a matter for you. I take account of the prospect that you may be cleared from your current management rating or security classification once sentenced and that you are only a young man. I do not conclude that you lack opportunity for rehabilitation. I take into account the importance for you to maintain some opportunity to find that pathway to positive integration into the community.

32 I have already noted that the law regards attempted murder as a very grave offence. Although the fact that Mr Locke has physically recovered from his injuries is not irrelevant, the gravity of an attempted murder is assessed by reference to your murderous intention determined by the jury. Your offending brings into consideration, when assessing the appropriate sentence, issues of both general and specific deterrence. Our society will not tolerate random unprovoked attacks on innocent citizens by offenders with poor impulse control wandering the streets armed with a knife. The community cries out for protection. Those who undertake such behaviours must appreciate that the penalty will be a heavy one. Further, the use of a knife requires general deterrence. Citizens must know that if they resort to randomly stabbing others with a weapon, very serious punishment will follow.

33 Specific deterrence is also important in your case given your refusal to accept responsibility for your conduct. You will have to learn that acting with self-centred impunity is not acceptable in the real world and it is necessary to impose on you a sentence that clearly brings home to you the serious consequence of your actions in order to deter you from any further conduct of this kind.

34 As required by the Sentencing Act 1991 (Vic) I have had regard to current sentencing practices. I have considered a number of the cases on attempted murder.[3] I have also considered the statistics compiled by the Sentencing Advisory Council in its Sentencing Snapshot for Attempted Murder.[4] The Snapshot states that 'the median length of imprisonment term imposed [for attempted murder] was 11 years while the median length of non-parole period was eight years.'

35 Ultimately, I must fix a sentence which is just in all the circumstances of your case and in so doing I carefully considered each of the matters to which I have referred. I have also carefully considered all that has been said on your behalf, particularly by Ms Jackson and by your counsel in eloquently urging mitigation of penalty to the extent feasible in your case, even if I have not specifically referred to it. Applying the principle of parsimony,[5] I must impose a sentence that is no more than is necessary to achieve the purpose or purposes for which the sentence is imposed.

36 On the count of attempted murder of which you were convicted by the jury, I sentence you to 12 years imprisonment, which is the base sentence. On the count of being a prohibited person in possession of a firearm on indictment no. F10515641-B to which you pleaded guilty, I sentence you to nine months imprisonment. Paying due respect to the principle of totality, I direct that this sentence be served concurrently with the base sentence, a total effective sentence of 12 years. I fix a minimum non-parole period of 9 years.

37 Pursuant to s 18 of the Sentencing Act, I declare that you have served up to, but not including today, 595 days of pre-sentence detention.

38 I will make the following orders sought by the Crown; a disposal order pursuant to s 78 of the Confiscation Act 1997 and a firearms forfeiture order pursuant to s 151 of the Firearms Act 1996.

39 Pursuant to s 6AAA of the Sentencing Act, I declare that but for your plea of guilty on the count of being a prohibited person in possession of a firearm, I would have sentenced you to twelve months imprisonment.

[1] Crimes Act 1958, s 321P(1A).

[2] Firearms Act 1996, s 5.

[3] The Judicial College of Victoria Sentencing Manual at Chapters 26.13.4 and 26.13.4.1 summarises attempted murder cases between 1997 and 2013. The sentence for attempted murder with respect to these cases ranges from 8 to 16 years for the head sentence and 5.5 to 11 years for the non-parole period. See also the Queen v Brew [2013] VSC 131, The Queen v Quail [2013] VSC 190, DPP v Saltmarsh [2013] VSC 290, Soteriou v The Queen [2013] VSCA 328, R v Rapovski [2015] VSC 359, R v Darrington [2016] VSC 60, The Queen v Sandhu [2016] VSC 516, DPP v Boodhoo [2016] VSC 458.

[4] Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends for attempted murder in the higher courts of Victoria, 2001-02 to 2005-06, No 21, January 2007. Although somewhat dated, this is the current Sentencing Snapshot for attempted murder.

[5] Sentencing Act 1991, s 5.