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Byrne v The Queen

Byrne v The Queen

Case [2020] VSCA 289 19 November 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0223

DWAYNE BYRNE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2020
DATE OF JUDGMENT:	19 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 289
JUDGMENT APPEALED FROM:	DPP v Byrne [2019] VCC 1771 (Judge Mullaly)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL
AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – One charge of intentionally causing injury, one charge of possessing a prohibited weapon – Unprovoked attack on inmate in prison exercise yard – Repeated punching and kicking of victim – Sentence of 5 years and 6 months’ imprisonment on intentionally causing injury charge – Applicant undergoing another sentence – Effective cumulation of 3 years – Total effective sentence of 16 years’ imprisonment with non-parole period of 12 years and 6 months – Institutionalised offender with disadvantaged background and significant criminal history of violent offending – Limited prospects of rehabilitation – Whether sentence on charge of intentionally causing injury manifestly excessive – Whether order for cumulation excessive and breached principle of totality – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr C Mandy SC	Papa Hughes Lawyers
For the Respondent:	Mr P Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
OSBORN JA:

On 29 October 2019 the applicant, Dwayne Byrne, then aged 26 years, pleaded guilty in the County Court at Melbourne to one charge of intentionally causing injury,[1] and to the summary offence of possessing a prohibited weapon.[2] On that day, his Honour Judge Mullaly sentenced the applicant to be imprisoned for five years and six months on the intentionally causing injury charge and for one month on the summary charge (wholly concurrent). The judge ordered that two years and six months of the sentence be served concurrently with a sentence the applicant was then serving, effecting cumulation of three years on the previous sentence. This resulted in a total effective sentence of 16 years’ imprisonment. The judge fixed a non-parole period of 12 years and six months.
[1]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[2]Control of Weapons Act 1996, s 5AA. The maximum penalty is 2 years’ imprisonment.

The sentence upon which the judge imposed cumulation was itself the product of two prior sentences. On 28 September 2016, the applicant was sentenced by John Dixon J in the Supreme Court to a total effective sentence of 12 years’ imprisonment with a non-parole period of nine years for attempted murder and being a prohibited person in possession of a firearm.[3]
[3]See R v Byrne [2016] VSC 580 (John Dixon J); on appeal against conviction, Byrne v The Queen [2017] VSCA 253 (Priest, Beach and Hansen JJA).

The sentence for attempted murder related to an incident on 7 February 2015 in which the…

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: Dwayne Byrne v The Queen [2020] VSCA 289
Case: [2020] VSCA 289
Decision Date: 19 November 2020

CaseChat Overview and Summary

In the matter of Byrne v The Queen, the applicant appealed against his sentence following a conviction on two charges: intentionally causing injury and possessing a prohibited weapon. The case came before the court due to the severity of the sentence imposed on the applicant, who had perpetrated an unprovoked attack on another inmate in a prison exercise yard, involving repeated punching and kicking. The applicant was sentenced to 5 years and 6 months’ imprisonment for the charge of intentionally causing injury, in addition to another sentence he was already serving. The court ordered the sentences to cumulate, resulting in an effective total sentence of 16 years with a non-parole period of 12 years and 6 months. The applicant argued that the sentence for the charge of intentionally causing injury was manifestly excessive and that the order for cumulation was excessive, breaching the principle of totality.

The primary legal issue before the court was whether the sentence imposed on the applicant for intentionally causing injury was manifestly excessive. The court also had to consider whether the order for cumulation was excessive and breached the principle of totality. The applicant, an institutionalised offender with a disadvantaged background and a significant criminal history of violent offending, argued that he had limited prospects of rehabilitation. The applicant's legal team submitted that the sentence should be reduced due to these factors.

The court found that the sentence imposed on the applicant for the charge of intentionally causing injury was not manifestly excessive, as it was appropriate and proportionate to the seriousness of the offence. The court held that the applicant's violent criminal history and lack of rehabilitation prospects were relevant considerations, but did not render the sentence manifestly excessive. The court also determined that the order for cumulation was not excessive and did not breach the principle of totality, as it was necessary to ensure the applicant's punishment was commensurate with the gravity of his offending. Consequently, the applicant's leave to appeal was refused.

Orders