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Byrne v Mingay

Byrne v Mingay

Case [2014] ACTSC 126 5 June 2014

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ERIN BYRNE v GARY WILLIAM MINGAY
[2014] ACTSC 126 (5 June 2014)

APPEAL-GENERAL PRINCIPLES – In general and right of appeal – Prosecution appeal – Appeal against sentence by informant attract same principles as Crown appeal against sentence

APPEAL AND NEW TRIAL – In general and right of appeal – Whether sentencing manifestly inadequate – No error of fact or law in the assessment by the Magistrate – Sentence at lower range of appropriate sentences – Sentence not manifestly inadequate – Appeal dismissed

CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Conditions to a good behaviour order – Must be individualised

Child Protection (Offender Reporting) Act 2004 (Qld)
Crimes (Child Sex Offenders) Act 2005 (ACT), ss 8, 11, 37, 54, 59, Pt 3.3
Crimes (Child Sex Offenders) Amendment Act 2012 (ACT)
Child (Sex Offenders) Regulation 2005 (ACT)), s 9
Crimes (Sentencing) Act 2005 (ACT), Div 3.10.2, Pts 3.2-3.6
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10

Criminal Code Act 1899 (Qld), s 210

Balthazaar v The Queen [2012] ACTCA 26
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Dinsdale v The Queen (2000) 202 CLR 321
Director of Public Prosecutions v Ip [2005] ACTCA 24
Everett v The Queen (1994) 181 CLR 295
Griffith v The Queen (1977) 137 CLR 293
Hawkins v Hawkins (2009) 3 ACTLR 210
Macpherson v Beath (1975) 12 SASR 174
Maher vCarpenter (2012) 7 ACTLR 216
Philp (1999) 108 A Crim R 336
R v Bugmy [2004] NSWCCA 258
R v Carney [2013] ACTSC 266
R v De Simoni (1981) 147 CLR 383
R v Harvey (1989) 40 A Crim R 102
R v Hoang (2002) 128 A Crim R 422
R v Osenkowski (1982) 30 SASR 212
Talukder v Dunbar (2009) 194 A Crim R 545
Weston v Arley [2012] ACTSC 138

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 105 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 5 June 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCA 105 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ERIN BYRNE

Appellant

AND:GARY WILLIAM MINGAY
Respondent

ORDER

Judge:  Refshauge J
Date:  5 June 2014
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The respondent, Gary William Mingay, is a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) (the Child Sex Offenders Act).

He was convicted in the Townsville District Court on 6 December 2004 of three counts of indecent treatment of children under sixteen years an offence contrary s 210 of the Criminal Code Act 1899 (Qld), the convictions for which made him a registrable offender under Child Protection (Offender Reporting) Act 2004 (Qld).

Mr Mingay came to the ACT and on 10 April 2007 became a registrable offender under s 8 of the Child Sex Offenders Act by virtue of s 11 of that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrne v Mingay

Details

AGLC: Byrne v Mingay [2014] ACTSC 126
Case: [2014] ACTSC 126
Decision Date: 5 June 2014

CaseChat Overview and Summary

Byrne v Mingay is a case involving an appeal against a sentence imposed by a Magistrate. The respondent, Mingay, was convicted and sentenced by the Magistrates Court for various criminal offences. Byrne, the appellant, who played a role as an informant in the case, appealed against the sentence, arguing it was manifestly inadequate. The appeal was heard and determined by the Supreme Court.

The primary legal issue before the court was whether the sentence imposed by the Magistrate was manifestly inadequate. The court had to consider whether the sentence fell below the range of appropriate sentences for the offences committed, and whether there were any errors in the Magistrate's assessment of the case. Additionally, the court needed to determine if the conditions imposed on the good behaviour order were appropriately individualised for the respondent.

In dismissing the appeal, the court held that there was no error of fact or law in the Magistrate's assessment of the case. The sentence imposed was within the appropriate range for the offences, and the conditions of the good behaviour order were suitable. The court emphasised that the principles governing an appeal against a sentence by an informant are the same as those for a Crown appeal against sentence. The sentence was not manifestly inadequate, and therefore, the appeal was dismissed.

The Supreme Court confirmed that the appeal was dismissed, and no further orders were made. The sentence and conditions of the good behaviour order imposed by the Magistrate were upheld.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Byrne v Mingay [2014] ACTSC 126

Most Recent Citation

Hambrook v Duke [2014] ACTSC 203

Cases citing this decision · 5 of 5 shown

R v Degioannis
[2019] ACTSC 47

…Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Butters v R [2010] NSWCCA 1 Byrne v Mingay [2014] ACTSC 126; 242 A Crim R 9 Clarkson v The Queen [2011] VSCA 157; 32 VR 361 Cranfield v The Queen [2018] ACTCA 3 Degioannis v Boxx [2017] ACTSC 7 Fusimalohi v The…
R v Eyles
[2018] ACTSC 318

…Byrne v Mingay [2014] ACTSC 126 Weston v Arley [2012] ACTSC 138…
R v Eyles (No 3)
[2017] ACTSC 1 Para 1

…It would be a serious version of the offence were the offending to have been contumacious as explained in Byrne v Mingay [2014] ACTSC 126; 242 A Crim R 9 at 17-18; [74]-[77]. It was as, indeed, the Crown Prosecutor agreed, not a contumacious example of such offending. Indeed, it was a less serious version of the of…
R v Charles
[2016] ACTSC 177 Para 1

…imposes various obligations involving the reporting of various matters. See, for example, but under the ACT legislation in relevantly similar terms, Byrne v Mingay (2014) 242 A Crim R 9 at 11; [4], and OH v Driessen [2015] ACTSC 148 at [82]-[90].…
Hambrook v Duke
[2014] ACTSC 203 Para 1

…I said in Byrne v Mingay [2014] ACTSC 126 at [64]-[65] about such appeals:…

View all 5 citing cases →

Cases cited in this decision · 21 of 21 shown

R v Carney
[2013] ACTSC 266 Para 1

…meant that, if the prosecution wished to rely on it as an aggravating fact, it had to be proved beyond reasonable doubt. I have set out in R v Carney [2013] ACTSC 266 at [149] the principles that apply when facts are disputed at sentence. In particular, I said…
Weston v Arley
[2012] ACTSC 138 Para 1

…In Weston v Arley [2012] ACTSC 138 at [84]-[85] I described the offence of a registrable offender failing to report a change of personal details:…
Balthazaar v The Queen
[2012] ACTCA 26 Para 1

…In particular, the comments of the Court of Appeal in Balthazaar v The Queen [2012] ACTCA 26 at [61] are apposite where the Court said…
Maher v Carpenter
[2012] ACTSC 38 Para 1

…bligation of the court, if it were going to make a finding on this issue, would have been to alert Mr Mingay to that and what it was going to do. See Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41], where I point out that it is necessary for a court to ensure that an unrepresented litigant is aware of his or her substa…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles for determining such appeals. I apply them in this case. They may be summarised as follows.…
Hawkins v Hawkins
[2009] ACTSC 148 Para 1

…fest inadequacy of a sentence is, like an appeal against the manifest excess of a sentence an appeal against a discretionary order. I have set out in Hawkins v Hawkins (2009) 3 ACTLR 210 at 218-21; [39]-[54] the principles to be applied. I do not need to repeat them here, but I apply them here.…
Talukder v Dunbar
[2009] ACTSC 42 Para 1

…pressly articulated to the learned Magistrate his challenge to the assertion. He did not accept it. That brings into play the approach I described in Talukder v Dunbar (2009) 194 A Crim R 545 at 549-50; [20]-[23]. That approach was not adopted by the prosecution at sentence and so the mother’s assertion remained just that,…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…In Cotter v Corvisy (2008) 1 ACTLR 299 at 308; [38], I discussed the meaning of contumacy. I said…
Director of Public Prosecutions v Ip
[2005] ACTCA 24 Para 1

…decisions such as Griffith v The Queen (1977) 137 CLR 293 at 310, Everett v The Queen (1994) 181 CLR 295 at 306, Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38], R v Osenkowski (1982) 30 SASR 212 at 212-213 and Dinsdale v The Queen (2000) 202 CLR 321 at 340.…
R v Osenkowski
[2005] SASC 142 Para 1

…1977) 137 CLR 293 at 310, Everett v The Queen (1994) 181 CLR 295 at 306, Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38], R v Osenkowski (1982) 30 SASR 212 at 212-213 and Dinsdale v The Queen (2000) 202 CLR 321 at 340.…
R v Bugmy
[2004] NSWCCA 258 Para 1

…In the New South Wales court of Criminal Appeal, Kirby J, with whom Bryson JA and James J agreed, said in R v Bugmy [2004] NSWCCA 258 at [61], after a review of the authorities on the question of conditions attached to orders that grant an offender conditional liberty,…
Weininger v The Queen
[2003] HCA 14

…sion of a fact of mitigation is not the equivalent of persuasion of the opposite fact of aggravation: R v Olbrich at 278; [16]; Weininger v The Queen (2003) 212 CLR 629 at 636; [19], 638; [24].…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…1 CLR 295 at 306, Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38], R v Osenkowski (1982) 30 SASR 212 at 212-213 and Dinsdale v The Queen (2000) 202 CLR 321 at 340.…
R v Olbrich
[1999] HCA 54

…oubt any matters adverse to the offender or which may aggravate the culpability of the offender: R v Storey (1996) 9 A Crim R 519 at 530; R v Olbrich (1999) 199 CLR 270 at 281; [27]. A court may not be able to resolve every fact that is disputed, just as it may not be able to ascertain all matters relevant to the cir…
Witham v Holloway
[1995] HCA 3

…chener (1978) 20 ALR 535 at 541. As many of the cases suggest, contumacy is defiance – defiant disobedience to authority: Witham v Holloway (1995) 183 CLR 525 at 542; Doyle and Ors v Commonwealth and Anor (1985) 156 CLR 510 at 516; Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483 at 489.…
Everett v the Queen
[1994] HCA 49 Para 1

…e same principles as a Crown appeal against sentence set out in decisions such as Griffith v The Queen (1977) 137 CLR 293 at 310, Everett v The Queen (1994) 181 CLR 295 at 306, Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38], R v Osenkowski (1982) 30 SASR 212 at 212-213 and Dinsdale v The Queen (2000) 20…
Doyle v The Commonwealth
[1985] HCA 46

…ntumacy is defiance – defiant disobedience to authority: Witham v Holloway (1995) 183 CLR 525 at 542; Doyle and Ors v Commonwealth and Anor (1985) 156 CLR 510 at 516; Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483 at 489.…
R v De Simoni
[1981] HCA 31 Para 1

…indeed, to take it into account in the sentence for this offence may well have breached the principles established by the High Court in R v De Simoni (1981) 147 CLR 383.…
Australian Consolidated Press Ltd v Morgan
[1965] HCA 21

…83 CLR 525 at 542; Doyle and Ors v Commonwealth and Anor (1985) 156 CLR 510 at 516; Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483 at 489.…
Griffiths v The Queen
[1977] HCA 44 Para 1

…against sentence by the informant attracted the same principles as a Crown appeal against sentence set out in decisions such as Griffith v The Queen (1977) 137 CLR 293 at 310, Everett v The Queen (1994) 181 CLR 295 at 306, Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38], R v Osenkowski (1982) 30 SASR 21…
Australian Consolidated Press Limited v Morgan & Anor
24 ER 438

…nt disobedience to authority: Witham v Holloway (1995) 183 CLR 525 at 542; Doyle and Ors v Commonwealth and Anor (1985) 156 CLR 510 at 516; Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483 at 489.…

Legislation cited in this decision · 6

Crimes (Child Sex Offenders) Act 2005 (ACT)
11, 37, 54, 59, 8 6 mentions (from Para 1)
Criminal Code Act 1899 (Qld)
210 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)
Child Protection (Offender Reporting) Act 2004 (Qld)
1 mention (from Para 1)
Crimes (Child Sex Offenders) Amendment Act 2012 (ACT)
1 mention (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 1)