Byrne v The Queen - [2015] VSCA 294

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0135

DANIEL BYRNE	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2015
DATE OF JUDGMENT:	9 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 294
JUDGMENT APPEALED FROM:	DPP v Byrne (Unreported, County Court of Victoria, Judge Wilmoth, 5 June 2015)

---

CRIMINAL LAW – Appeal – Sentence – Attempting to pervert the course of justice and other offences – Following a car accident resulting from dangerous driving applicant attempted to mislead police – Sentence of 18 months’ imprisonment with 2 year CCO – Appeal allowed – Sentence of 10 months’ imprisonment substituted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Stary Norton Halphen
For the Respondent	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

Whilst under the influence of alcohol, in the late hours of 21 June 2014 the applicant lost control of the car he was driving and collided with several parked vehicles. He then falsely reported to police that his car had been stolen. That false report set in train a series of events which led to the applicant being charged with a number of indictable and summary offences.

On 24 March 2015, the applicant pleaded guilty in the County Court to two indictable, and nine summary, charges. Following a plea, he was sentenced on 5 June 2015 to be imprisoned for 18 months, to be followed by a community correction order (‘CCO’) of two years’ duration, according to the following table:

Charge Offence Sentence Cumulation

1 Using an unregistered category E longarm[1] 9 months’ and 2 year CCO 3 months

2 Attempt to pervert the course of justice[2] 12 months’ and 2 year CCO Base

Summary Charges

3 Exceed prescribed concentration of alcohol[3] $500 fine —

5 Drive in a way that makes unnecessary noise[4] $100 fine —

6 Fail to give name and address after an accident[5] 14 days —

7 Fail to give name and address after an accident 14 days 14 days

8 Fail to give name and address after an accident 14 days 14 days

9 Unlicensed driving[6] 14 days —

10 Use unregistered vehicle[7] $500 fine —

11 Use unroadworthy vehicle[8] $100 fine —

16 Dangerous driving[9] 3 months 2 months

Total effective sentence 18 months’ imprisonment and CCO for 2 years (with conditions for 100 hours of unpaid community work, supervision, treatment and rehabilitation

Non-parole period Nil

Pre-sentence detention 17 days

Section 6AAA declaration 2 years’ imprisonment and CCO for 3 years

Other orders Disqualified from holding or obtaining any licence for a period of 6 months on summary charge 3 and for 12 months on summary charge 16; forensic procedure order; and compensation orders ($10,658.59 to QBE Insurance and $3,258.34 to RACV).

[1]Firearms Act 1996, s 6A(3). The maximum penalty is imprisonment for 7 years or 600 penalty units.
[2]Common law. By s 320 of 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: Daniel Byrne v The Queen [2015] VSCA 294
Case: [2015] VSCA 294
Decision Date: 9 November 2015

CaseChat Overview and Summary

The case of Byrne v The Queen involves the appellant who was convicted of attempting to pervert the course of justice, dangerous driving, and driving without a licence. The appeal before the court was against his sentence of 18 months' imprisonment, with a two-year community corrections order (CCO) imposed by the County Court. The appellant argued that the original sentence was excessive and that a lesser sentence of 10 months' imprisonment, with a CCO, was more appropriate.

The primary legal issue before the court was the assessment of the appropriate sentence for the appellant's convictions. The court was required to consider the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing for similar offences. The court also needed to evaluate the arguments presented by both the prosecution and the defence regarding the appropriate sentence.

The court found that the original sentence of 18 months' imprisonment was indeed excessive, particularly when considering the appellant's lack of a prior criminal history and his guilty plea. The court acknowledged the seriousness of the offences but emphasised the need for proportionality in sentencing. The court also took into account the appellant's remorse and his cooperation with the police. As a result, the court allowed the appeal and substituted the original sentence with a lesser sentence of 10 months' imprisonment, with a CCO.

Orders