Byrne v The Queen - [2015] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Byrne v R [2015] NSWCCA 159
Hearing dates: 25 May 2015
Date of orders: 25 May 2015
Decision date: 24 June 2015
Before: Hoeben CJ at CL at [1];
Hidden J at [2];
Adams J at [21]
Decision:
Leave granted, appeal allowed. Sentence passed in the District Court quashed. Taking into account the matters on the Form 1, applicant re-sentenced on each count to imprisonment for a fixed term of 7 months, commencing on 25 October 2014 and expiring on 24 May 2015.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – 2 charges of supplying prohibited drugs – related Form 1 matters – strong subjective case, including positive response to drug rehabilitation – failure of sentencing judge to take into account pre-sentence custody – sentence reduced to time served
Legislation Cited: Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Cases Cited: EF v R [2015] NSWCCA 36
Kaminic v R [2014] NSWCCA 116
Category: Principal judgment
Parties: Christopher Anthony Byrne (applicant)
Regina (respondent Crown)
Representation:
Counsel:
H Cox (applicant)
N Williams (respondent Crown)
Solicitors:
SE O’Connor – Legal Aid NSW (applicant)
C Hyland – Solicitor for Public Prosecutions (respondent Crown)

File Number(s): 2013/45039
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 May 2014

Before:

Maiden DCJ

File Number(s):

2013/45039

Judgment

HOEBEN CJ at CL: I agree with Hidden J.
HIDDEN J: The applicant, Christopher Anthony Byrne, pleaded guilty in the District Court to a charge of supplying an indictable quantity of heroin and another of supplying an indictable quantity of methamphetamine. Each is an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of imprisonment for 15 years. In addition, there were taken into account on a Form 1 offences of dealing with the proceeds of crime (s 193C(1) of the Crimes Act 1900) and conducting drug premises (s 36Z(1)(a) of the Drug Misuse and Trafficking Act).
On each count the applicant was sentenced to imprisonment for a fixed term of 9 months, dating from the date sentence was imposed, 12 May 2014. He sought leave to appeal against those sentences. On 25 May 2015, this Court granted leave to appeal, allowed the appeal and, taking into account the Form 1 matters, sentenced him on each count to imprisonment for a fixed term of 7 months, commencing on 25 October 2014 and expiring on 24 May 2015. Accordingly, the sentence expired on the day before the application was heard. These are my reasons for joining in those orders.

Facts

The facts can be summarised briefly. The applicant and his partner, Lindsie Grice, were subjects of a police investigation into the supply of prohibited drugs in the Newcastle area. Investigations revealed that they were obtaining large quantities of prohibited drugs through associates in Sydney, whom they would meet in secluded bushland area on the Central…

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 The Queen

Details

AGLC: Byrne v The Queen [2015] NSWCCA 159
Case: [2015] NSWCCA 159
Decision Date: 24 June 2015

CaseChat Overview and Summary

The case before the court involved the defendant, Byrne, appealing against the sentence imposed by the sentencing judge. The defendant was convicted on two charges of supplying prohibited drugs and faced related matters under Form 1. Byrne had made a strong case for rehabilitation, including a positive response to a drug rehabilitation program. The primary issue before the court was whether the sentencing judge had failed to adequately consider Byrne's pre-sentence custody when imposing the sentence, and whether this constituted a substantial miscarriage of justice warranting the grant of leave to appeal.

The court considered whether the sentencing judge had overlooked Byrne's pre-sentence custody, which had a significant impact on the overall sentence. The court acknowledged the strong subjective case presented by Byrne, including the positive response to the drug rehabilitation program. However, the court found that the sentencing judge had not adequately taken into account the pre-sentence custody when imposing the sentence. The court held that this constituted a substantial miscarriage of justice, warranting the grant of leave to appeal.

Consequently, the court reduced Byrne's sentence to the time already served. The court's decision highlighted the importance of considering all relevant factors, including pre-sentence custody, when imposing a sentence. This case serves as a reminder for sentencing judges to carefully consider all aspects of a defendant's circumstances to ensure a fair and just outcome.

Orders