Jonathon Charles Byrnes v The Queen - [2015] VSCA 341

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0187

JONATHON CHARLES BYRNES	Applicant
V
THE QUEEN	Respondent

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JUDGES:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 December 2015
DATE OF JUDGMENT:	10 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 341
JUDGMENT APPEALED FROM:	DPP v Byrnes (County Court of Victoria, Judge McInerney, 6 August 2015).

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CRIMINAL LAW – Leave to appeal against sentence – False imprisonment – Threat to kill – Manifest excess – Double punishment – Combination sentence – Family violence - Serious offending – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Tony Danos Solicitors
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA:

The applicant seeks leave to appeal against a sentence imposed on him by a judge of the County Court on 3 September 2015.

The applicant pleaded guilty to one charge of false imprisonment and one charge of threat to kill. He also pleaded guilty to four summary offences, being one charge of contravening a family violence intervention order (a rolled up charge), one charge of assault with a weapon, one charge of assaulting police in the execution of duty (a rolled up charge) and one charge of resisting police in the execution of duty (a rolled up charge). Pursuant to s 145 and s 242 of the Criminal Procedure Act 2009, those summary offences were transferred to the County Court to be determined by that court.

On 3 September 2015, the applicant was sentenced in respect of those offences as follows:

Charges on Indictment	Offence	Maximum Penalty	Sentence	Cumulation
1.	False Imprisonment [Common Law]	10 years [s 320 of the Crimes Act 1958]	3 years	Base
2.	Threat to Kill [s 20 Crimes Act 1958]	10 years [s 20 Crimes Act 1958]	2 years	6 months
Related Summary Charge “1”	Contravene family violence intervention order [s 123(2) Family Violence Protection Act 2008]	2 years [s 123(2) Family Violence Protection Act 2008]	Aggregate 6 months imprisonment	3 months imprisonment
Related Summary Charge “2”	Aggravated Assault [s 24(2) Summary Offences Act 1966]	2 years [s 24(2) Summary Offences Act 1966]	3 months imprisonment	Nil
Related Summary Charge “3”	Contravene family violence intervention order [s 123(2) Family Violence Protection Act 2008]	2 years [s 123(2) Family Violence Protection Act 2008]	Aggregate 6 months imprisonment	3 months imprisonment
Related Summary Charge “4”	Contravene family violence intervention order [s 123(2) Family Violence Protection Act 2008]	2 years [s 123(2) Family Violence Protection Act 2008]	Aggregate 6 months imprisonment	3 months imprisonment
Related Summary Charge “5”	Assault Police [s 52(1) Summary Offences Act 1966]	6 months [s 52(1) Summary Offences Act 1966]	1 month imprisonment	Nil
Related Summary Charge “6”	Resist Arrest [s 52(1) Summary Offences Act 1966]	6 months [s 52(1) Summary Offences Act 1966]	1 month imprisonment	Nil
Total Effective Sentence:		3…

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 Jonathon Charles Byrnes v The Queen

Details

AGLC: Jonathon Charles Byrnes v The Queen [2015] VSCA 341
Case: [2015] VSCA 341
Decision Date: 10 December 2015

CaseChat Overview and Summary

The applicant, Jonathon Charles Byrnes, sought leave to appeal against his sentence for convictions of false imprisonment and threatening to kill. The case was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed by the lower court was manifestly excessive and constituted double punishment. The applicant argued that the combination of sentences for false imprisonment and threatening to kill, along with additional sentences for other related charges, amounted to a manifestly excessive punishment.

The court examined whether the sentences were disproportionate and whether the cumulative effect of the sentences constituted double punishment. The court noted that the applicant had a history of family violence and had committed serious offences. Despite these considerations, the court found that the sentences imposed were within the range of what was appropriate for the crimes committed. The court concluded that the sentences did not amount to double punishment, and the cumulative effect did not render the sentence manifestly excessive.

Consequently, the High Court refused the application for leave to appeal. The reasoning of the lower court in imposing the sentences was upheld, and the applicant's appeal was dismissed. The court determined that the sentences were not manifestly excessive or punitive beyond the offence. The applicant's request for leave to appeal was therefore denied, and the original sentences were upheld.

Orders