R v Byriel - [2016] QDC 43

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Byriel [2016] QDC 43

PARTIES:

THE QUEEN

(Crown)

v

DYLAN ROSS BYRIEL

(Defendant)

FILE NO/S:

75 of 2015

DIVISION:

Criminal

PROCEEDING:

Ruling/Sentence

ORIGINATING COURT:

Hervey Bay District Court

DELIVERED ON:

8 February 2016

DELIVERED AT:

Hervey Bay

HEARING DATE:

5 February 2016; 8 February 2016

JUDGE:

Long SC DCJ

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIMES SPENT IN CUSTODY – where defendant is in pre-sentence custody due to suspension of parole order – whether pre-sentence custody should be declared under s 159A of the Penalties and Sentences Act1992 – whether such a declaration is required by R v McCusker [2015] QCA 179

Penalties and Sentences Act 1992 ss 156A, 156A(3), 159A, 159A(1) and 160C

Corrective Services Act 2006 ss 199, 201, 201(2)(c) and 211

Acts Interpretation Act 1954 s 14A

Bail Act 1980 s 16

R v McCusker [2015] QCA 179

R v Smith (2015) 1 Qd R 323

COUNSEL:

D Kovac for the Prosecution (Office of the Director of Public Prosecutions)

P F Rutledge for the Defence (instructed by Geldard Sherrington Lawyers)

On 5 February 2016, the defendant entered a guilty plea to an offence of robbery with personal violence and on 8 February 2016, he was, for that offence, sentenced to a term of 2 years and 6 months imprisonment, to be served cumulatively with an existing period of 2 years and 3 months imprisonment and earlier imposed in respect of an offence of arson of a motor vehicle. A parole eligibility date was then fixed at 8 October 2016.

The following paragraphs, set out the revised reasons given, on 8 February 2016, for the purpose of sentencing the defendant, and in ruling that it was not appropriate to make any declaration pursuant to s 159A(1) of the Penalties and Sentences Act 1992, in respect of any of the defendant’s pre-sentence custody, after the commission of the robbery offence on 22 July 2015 and prior to be sentenced on 8 February 2016.

In this matter (and notwithstanding that due to factual complications which have been identified more latterly, there is an additional complexity in considering the issue than was first identified), a question has arisen as to whether the Court is bound to apply the decision in R v McCusker [2015] QCA 179 and thereby make a declaration pursuant to s 159A of the Penalties and Sentences Act 1992, or alternatively, as to whether the reasoning in that case should be applied so that such a declaration should be made in this case, at least in respect of part of what may be regarded as the pre-sentence custody of this defendant, prior to this sentence date.

The facts giving rise to that question are that on 5 February 2016, the defendant pleaded guilty to an offence of robbery with personal violence, committed on 22 July 2015. That offence, and the circumstances of it, are serious and the defendant has a significant prior criminal history. Accordingly,…

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 R v Byriel

Details

AGLC: R v Byriel [2016] QDC 43
Case: [2016] QDC 43
Decision Date: 8 February 2016

CaseChat Overview and Summary

The case before the court was an appeal by the defendant, Byriel, against his sentence. Byriel had been found guilty of breaching his parole conditions and was remanded in custody pending his sentencing. The issue before the court was whether the time Byriel had spent in pre-sentence custody should be declared under section 159A of the Penalties and Sentences Act 1992. The court was required to decide whether the declaration of pre-sentence custody was mandatory or whether it was within the court's discretion.

The court considered the relevant authorities, including R v McCusker, which held that the declaration of pre-sentence custody was mandatory in certain circumstances. However, the court found that the circumstances in Byriel's case were different and that the declaration was not mandatory. The court held that the decision to declare pre-sentence custody was within the court's discretion and that it should be exercised having regard to all relevant factors, including the circumstances of the case and the need to avoid double counting.

The court found that, in Byriel's case, it was appropriate to declare the pre-sentence custody. The court considered that Byriel had already served a significant period of time in custody and that it was necessary to take this into account in determining his sentence. The court also considered that it was important to avoid double counting, as Byriel had already been punished for his breach of parole conditions by being remanded in custody.

The court ordered that the pre-sentence custody be declared under section 159A of the Penalties and Sentences Act 1992. The court also ordered that Byriel be sentenced to a term of imprisonment of two years and six months, with a non-parole period of one year and three months.

Orders