Director of Public Prosecutions v Byrnes - [2005] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 361 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

DAVID GREGORY BYRNES

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	GEELONG
DATE OF HEARING:	7 March 2005
DATE OF JUDGMENT:	9 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 63

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Criminal Law - Director's appeal against sentence - Detention and sexual penetration of a child aged five years - Youthful offender - Mild intellectual impairment - Principles in R. v. Tsiaras not applicable - Whether Crown conceded sentence of approximately three years' imprisonment appropriate in circumstances - Total effective sentence of three years and six months' imprisonment with minimum term of two years' imprisonment manifestly inadequate - Total effective sentence of six years' imprisonment with a minimum term of four years' imprisonment imposed - Crimes Act 1958, ss.45 and 55.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms R. Orr	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Victoria Legal Aid

WINNEKE, P.:

I will invite Chernov, J.A. to deliver the first judgment in this appeal.

CHERNOV, J.A.:

The Director of Public Prosecutions ("the Director") has appealed against the sentences imposed on 19 November 2004 by a judge of the County Court sitting at Geelong on David Gregory Byrnes ("the respondent"), who is now aged 19 years, after he pleaded guilty on 6 September 2004 to one count of detaining a person for the purpose of sexual penetration contrary to s.55 of the Crimes Act 1958 ("the Act") (count 1) and one count of sexually penetrating a child under sixteen years of age contrary to s.45(2)(a) of the Crimes Act 1958 (count 2). The maximum custodial penalty for the first offence is ten years. In respect of the second offence, since the victim was a child under the age of ten years, the maximum custodial sentence is 25 years. The respondent admitted 16 prior convictions from eight court appearances between 1999 and 2004, including a conviction in 2000 for committing an indecent act with a child under 16 years of age as well as eight convictions for violent offences, including unlawful assault and assault with a weapon. He has not, however, been sentenced previously to a term of imprisonment. Well after the hearing on 6 September 2004 of the plea in mitigation, on 12 November 2004, his Honour ordered at the respondent's request that he be assessed for suitability for detention in a youth training centre ("YTC"). In his report to the court dated 17 November 2004, the manager of the Juvenile Justice Unit for the Melbourne Central Courts, Stephen Riordan, assessed the respondent as not being suitable for such a sentencing disposition. On 19 November 2004, his Honour sentenced the respondent to six months' imprisonment in respect of count 1 and three years and six months' imprisonment in respect of count 2. The learned sentencing judge made no order for cumulation and thus, the total effective sentence imposed was…

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 Director of Public Prosecutions v Byrnes

Details

AGLC: Director of Public Prosecutions v Byrnes [2005] VSCA 63
Case: [2005] VSCA 63
Decision Date: 9 March 2005

CaseChat Overview and Summary

The appeal in this case arises from a conviction for the detention and sexual penetration of a child aged five years. The Director of Public Prosecutions challenged the sentence imposed on the offender, arguing it was manifestly inadequate. The offender, who had a mild intellectual impairment, was initially sentenced to three years and six months' imprisonment, with a minimum term of two years. The Crown did not dispute that a sentence of approximately three years' imprisonment was appropriate given the circumstances. However, the Director argued that the total effective sentence was manifestly inadequate and sought a harsher penalty.

The legal issues before the court centred on the adequacy of the sentence imposed on the offender and whether the Crown's concession about the appropriate length of imprisonment should be considered. The court had to determine if the total effective sentence of three years and six months' imprisonment with a minimum term of two years was manifestly inadequate, and if so, what sentence should be imposed. The court also needed to consider the principles set out in R. v. Tsiaras, which were not applicable to this case due to the offender's mild intellectual impairment.

The court found that the Crown's concession about the appropriate length of imprisonment should be taken into account. However, the total effective sentence of three years and six months' imprisonment with a minimum term of two years was manifestly inadequate. The court imposed a total effective sentence of six years' imprisonment with a minimum term of four years' imprisonment, considering the gravity of the offence and the offender's intellectual impairment. The decision underscores the importance of considering the specific circumstances of each case, including the offender's intellectual capacity, when determining an appropriate sentence.

Orders