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Byrne v R; Cahill v R

Byrne v R; Cahill v R

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Case Copied 11 August 2021 39 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Byrne v R; Cahill v R [2021] NSWCCA 185
Hearing dates: 30 June 2021
Date of orders: 11 August 2021
Decision date: 11 August 2021
Before: Bell P at [1];
Rothman J at [6];
Button J at [126]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – Appeal against sentence – manifest excess – street race between two motor vehicles – collision with innocent road user – manslaughter – no identifiable error by sentencing judge – sentence imposed while heavy was neither plainly unjust nor unreasonable – sentence within range and appropriate – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 18(1)(b); 52A

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; 243 FLR 28; 205 A Crim R 1; [2010] NSWCCA 194
DPP v Neethling (2009) 52 MVR 422; [2009] VSCA 116
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Abdulrahman [2020] NSWDC 731
R v Borkowski [2009] NSWCCA 102
R v Cahill; R v Byrne [2020] NSWDC 224
R v Despotovski [2020] NSWDC 110
R v Geddes (1936) 36 SR (NSW) 554
R v Taufahema [2004] NSWCCA 833
SBF v R (2009) 53 MVR 438; [2009] NSWCCA 231
TG v R [2010] NSWCCA 28
Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 143

Category: Procedural rulings
Parties:
2017/320907:
Joshua Aaron Byrne (Applicant)
Regina (Respondent)
2017/325691:
Mathew Thomas Cahill (Applicant)
Regina (Respondent)
Representation:
Counsel:
2017/320907:
P Coady (Applicant)
C Young (Respondent)

2017/325691:
L Fernandez (Applicant)
C Young (Respondent)

Solicitors:
2017/320907:
Aboriginal Legal Service (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
2017/325691:
Legal Aid (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/320907; 2017/325691
Decision under appeal

Court or tribunal:

Wagga Wagga District Court

Jurisdiction:

District Court

Citation:

[2020] NSWDC 224

Date of Decision:

22 May 2020

Before:

His Honour Judge Lerve

Judgment

BELL P: I have had the benefit of reading the reasons for judgment of Rothman J with which I agree. On an application for leave to appeal on the basis of manifest excess of sentence, the task of an applicant for leave is a difficult one for reasons that have been explained by Rothman J. A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown 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.

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Details

Case: [2021] NSWCCA 185
Decision Date: 11 August 2021

CaseChat Overview and Summary

The appellants, Byrne and Cahill, were convicted of manslaughter arising from a street race incident in which their vehicles collided with another vehicle, causing the death of a road user. Both appealed against their sentences, arguing that the sentences were manifestly excessive. The High Court of Australia was called upon to determine whether the sentences were appropriately severe given the circumstances of the offence.

The court identified that the primary legal issue was whether the sentences imposed were manifestly excessive. The court had to consider whether there was any identifiable error in the sentencing process and whether the sentences were plainly unjust or unreasonable. The court examined the nature of the offence, the culpability of the appellants, and the appropriate range of sentences for such a crime.

The court found that the sentencing judge had not made any identifiable error in the imposition of the sentences. The sentences were within the appropriate range and were considered appropriate given the circumstances. The court held that the sentences were neither plainly unjust nor unreasonable, and there was no basis to interfere with the sentencing judge's discretion. Consequently, the appeal was dismissed.

No further orders were made by the court.

Orders