Byron v The Queen; Byron v The Queen - [1989] HCATrans 184

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A23 of 1989
B e t w e e n -

THOMAS BYRON

Applicant
and
THE QUEEN
Respondent

Office of the Registry

Adelaide No A24 of 1989
B e t w e e n -

STEPHEN BYRON

Applicant
and
THE QUEEN

Byron

Respondent
Applications for special
leave to appeal

MASON CJ
BRENNAN J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON wlmSDAY, 23 AUGUST 1989, AT 9.47 AM

AlT2/l/FK

23/8/89

MR B.R. MARTIN, QC:

May it please the Court, I appear with

my learned friend, MR C.G. CALDICOTT, for the
applicant, Mr T. Byron. (instructed by
Caldicott & Co)

HR P. ROFE: If the Court pleases, I appear for the respondent,

The Honourable the Attorney-General. (instructed
by the Crown Solicitor for South Australia)

MR R.C. HALLIDAY: If the Court pleases, I appear for the applicant

btephen Byron. ~instructed by W.A.G. Morris, Pearce
& Associates)

MASON CJ: Yes, Mr Martin.

MR MARTIN:

Thank you, Your Honour.

I hand up an outline

for the applicant.

MASON CJ:

Thank you.

Yes.

MR MARTIN:

If the Court please, the applicant is concerned with

two errors of principle of matters of importance that
we will put to the Court were made in the fixation
of the non-parole period of 36 years and which errors
were adopted by the Court of Criminal Appeal.
The first is a principle that emanates, in our submission, from the case of :'.EG V VON EINEM in this
Court where, effectively,the result is that the
younger the offender the longer the non-parole
period which is likely to be fixed because the Court of Criminal Appeal took the view that the non-parole period had to bear a proper or appropriate relationship
to the head sentence which, of course, is life
imprisonment.
The second matter that we are concerned with is

the effect of a plea of guilty. The Court of Criminal
Appeal effectively determined in this case that the
applicant was not entitled to any benefit for the

plea of guilty because of his lack of candour and his

lack of co-operation with the authorities. It will
be our submission that he is entitled to a benefit
for that plea of guilty because it serves the practical
ends of the administration of criminal justice and
that the decision taken in the Court of Criminal
Appeal on this occasion is in conflict with two
earlier decisions of the Court in South Australia in
REG V SHANNON and REG V SLATER.
If the Court pleases, just to set the factual

background: the applicant was born on 19 September 1961,
therefore he was aged 24 at the time of the offence,
and the offence was committed on 10 August 1986 by the

applicant and his brother. The applicant, in fact,
attempted to enter a plea at the committal proceedings.
The plea was actually accepted by 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.

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Details

Case: [1989] HCATrans 184
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard applications for special leave to appeal from T. Byron and Stephen Byron, who were represented by Mr B.R. Martin QC and Mr R.C. Halliday respectively. The respondent was the Attorney-General, represented by Mr P. Rofe. The applicants sought to challenge the non-parole period of 36 years fixed by the Court of Criminal Appeal of South Australia.

The legal issues before the High Court concerned two alleged errors of principle in the fixation of the non-parole period. Firstly, the applicants contended that the Court of Criminal Appeal erred by applying a principle, derived from *R v Von Einem*, that a younger offender should receive a longer non-parole period, arguing this principle was improperly applied in relation to the head sentence of life imprisonment. Secondly, the applicants argued that the Court of Criminal Appeal wrongly denied them any benefit for their pleas of guilty, based on a perceived lack of candour and co-operation, and that this decision conflicted with earlier South Australian cases, *R v Shannon* and *R v Slater*.

The applicants' submissions focused on the sentencing judge's reliance on the "age factor" to justify the 36-year non-parole period, which they argued was equivalent to the benchmark set in *R v Von Einem* for the most serious types of murder where offenders had no mitigating circumstances. They also submitted that a plea of guilty should attract a benefit as it serves the practical ends of criminal justice administration. The applicant T. Byron was 24 at the time of the offence on 10 August 1986, and his non-parole period was fixed to commence from his arrest on 6 November 1986.

Orders