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Byron v The Queen

Byron v The Queen

Case [2018] NSWCCA 239 24 October 2018

Appeal

Breach of Contract

Aggravated & Exemplary Damages

Sentencing

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Byron v R [2018] NSWCCA 239
Hearing dates: 15 October 2018
Date of orders: 24 October 2018
Decision date: 24 October 2018
Before: Hoeben CJ at CL at [1]
Price J at [2]
Davies J at [3]
Decision:
(1) Leave to appeal granted.
(2) Dismiss the appeal.
Catchwords: CRIMINAL LAW – sentence – appeal – assault occasioning actual bodily harm – assault on taxi driver where applicant failed to pay fare – supplying a prohibited drug – street level dealer – where aggregate sentence of 19 months imposed to be served by way of intensive correction order – challenge by self-represented applicant to evidence relied upon by sentencing judge – assertions that applicant was a changed person now – challenge to ICO condition imposed by Community Corrections – whether length of ICO was manifestly excessive
Legislation Cited: Nil
Cases Cited: Hughes v R [2018] NSWCCA 2
Khoury v R [2011] NSWCCA 118
R v Fordham (1997) 98 A Crim R 359
Zreika v R [2012] NSWCCA 44
Texts Cited: Nil
Category: Principal judgment
Parties: Tony Byron (Applicant)
Crown (Respondent)
Representation:
Counsel:
In person (Applicant)
C Curtis (Respondent)
Solicitors:
Self-represented (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/18158 & 2017/86123
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

13 April 2018

Before:

Haesler DCJ

File Number(s):

2017/18158 & 2017/86123

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
PRICE J: I agree with Davies J.
DAVIES J: On 29 June 2017 the applicant pleaded guilty in the Local Court to two offences as follows:

Count 1: Assault occasioning actual bodily harm. The maximum penalty for this offence is five years’ imprisonment.

Count 2: Supply a prohibited drug being 19 grams of cocaine. The maximum penalty for this offence is 15 years’ imprisonment and/or 2000 penalty units.

On 13 April 2018 he was sentenced in the District Court by Judge Haesler SC. When doing so his Honour took into account two offences on a Form 1 that were attached to Count 2. Those offences were:

(1) Possess a prohibited drug being 0.31 grams of cocaine.

(2) Deal with the proceeds of crime being $2,095 in cash.

Judge Haesler sentenced the applicant to an aggregate sentence of imprisonment for one year and seven months commencing 13 April 2018 and expiring 12 November 2019, to be served by way of an intensive correction order.
The applicant, now acting for himself, filed an application for leave to appeal against the sentence imposed on three grounds as follows:

1. The presentence report (and subsequently, the ICO Assessment) tendered to the courts by Community Corrections were both inaccurate and provided an incorrect insight into my character and understanding of responsibility towards my offences for His Honour to see.
2. The supervision order as outlined in the Assessment section of both…

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 Byron v The Queen

Details

AGLC: Byron v The Queen [2018] NSWCCA 239
Case: [2018] NSWCCA 239
Decision Date: 24 October 2018

CaseChat Overview and Summary

Byron v The Queen involved an applicant appealing against a sentence imposed by the County Court of Victoria. The applicant was convicted of assault occasioning actual bodily harm, assault on a taxi driver due to non-payment of fare, and supplying a prohibited drug. The applicant, who represented himself in the appeal, challenged the evidence upon which the sentencing judge relied, particularly the seriousness of the assaults, the applicant's criminal history, and the nature of his drug dealing activities. The applicant also contested the severity of the intensive correction order (ICO) imposed by Community Corrections, arguing it was manifestly excessive.

The primary legal issues before the court were whether the evidence was sufficient to support the severity of the sentence and whether the length of the ICO was manifestly excessive. The court needed to determine if the sentence was appropriate in all the circumstances and if the ICO condition imposed by Community Corrections was reasonable. The applicant's self-representation added complexity to the proceedings, requiring the court to consider the applicant's arguments carefully despite the lack of formal legal representation.

The court found that the evidence was sufficient to support the sentence imposed by the sentencing judge. It rejected the applicant's contention that he was a changed person, noting the continuity in his offending behaviour. The court held that the aggregate sentence of 19 months was appropriate, and the ICO condition was reasonable. The court held that the applicant's challenge to the evidence and the length of the ICO was without merit. The court dismissed the appeal.

The final orders were that the appeal was dismissed, and the applicant was to serve the sentence as imposed by the County Court of Victoria. The court confirmed the aggregate sentence of 19 months to be served by way of an ICO and the ICO conditions imposed by Community Corrections.

Orders