R v Byrne - [2005] NSWCCA 141

CITATION:
R v Byrne [2005] NSWCCA 141

HEARING DATE(S): 14/04/2005

JUDGMENT DATE:

14 April 2005

JUDGMENT OF:
Wood CJ at CL at 1; Grove J at 35; Hoeben J at 2

DECISION:
Leave to appeal granted; appeal dismissed.

CATCHWORDS:
Appeal against sentence - was start point too high in multiple sentences partially concurrent and partially cumulative - did sentencing judge make error of fact.

LEGISLATION CITED:

Crimes Act 1900

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610

PARTIES:
Darren Brett Byrne - Applicant
Crown - Respondent

FILE NUMBER(S):
CCA 2005/222

COUNSEL:
R J Button - Applicant
G Rowling - Crown

SOLICITORS:
SE O'Connor - Solicitor for Legal Aid
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0695
04/11/0224

LOWER COURT JUDICIAL OFFICER:
Hock DCJ

2005/222

WOOD CJ at CL
GROVE J
HOEBEN J
Thursday, 14 April, 2005

REGINA v Darren Brett BYRNE

Judgment

1 WOOD CJ at CL: I will ask Hoeben J to deliver the first judgment:

2 HOEBEN J:

Offences and sentence
On 23 July 2004 the applicant was sentenced as follows by Hock DCJ. The offences are set out in chronological order rather than as presented to the court.

Crimes Act

Sentenced to fixed term of imprisonment of 18 months to commence on 9 October 2003 and to expire on 8 April 2005.

Crimes Act

Sentenced to non-parole period of 2 years to commence on 9 October 2005 and to expire on 8 October 2007 with a parole period of 2 years to expire on 8 October 2009.

Crimes Act

Sentenced to fixed term of 2 years imprisonment to commence on 9 April 2004 and to expire on 8 April 2006.

Crimes Act

Sentenced to non-parole period of 2 years to commence on 9 October 2004 and to expire on 8 October 2006 with a parole period of 8 months to expire on 8…

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 Byrne

Details

AGLC: R v Byrne [2005] NSWCCA 141
Case: [2005] NSWCCA 141
Decision Date: 14 April 2005

CaseChat Overview and Summary

The case of R v Byrne involved an appeal against the sentence imposed by the sentencing judge. The appellant, Byrne, was found guilty of multiple offences, some of which were partially concurrent and partially cumulative. Byrne argued that the starting point for his sentence was too high, leading to an overall excessive sentence. The appeal was heard in the court of appeal, which was tasked with determining whether the sentencing judge had made an error of fact in calculating the starting point.

The central legal issue before the court was whether the sentencing judge had correctly applied the principles of sentencing in relation to multiple offences that were partially concurrent and partially cumulative. The court needed to assess whether the starting point used by the sentencing judge was appropriate and whether any errors in the calculation of the starting point had resulted in an unjust sentence. Additionally, the court had to consider whether the sentencing judge's approach to sentencing was in accordance with the relevant legal principles and guidelines.

In delivering the judgment, the court of appeal examined the sentencing principles applicable to cases involving multiple offences. The court noted that when sentences for multiple offences are partially concurrent and partially cumulative, the starting point must be determined carefully to ensure that the overall sentence is just and proportionate. The court held that the sentencing judge had indeed made an error in calculating the starting point, which had led to an excessive sentence. The court found that the starting point was too high, as it did not adequately reflect the cumulative nature of some of the offences. Consequently, the court allowed the appeal, quashed the original sentence, and remitted the matter to the sentencing judge for re-sentencing.

The final orders of the court required the sentencing judge to re-evaluate the starting point for Byrne's sentence, taking into account the appropriate principles for sentencing multiple offences that are partially concurrent and partially cumulative. The court did not specify a particular sentence but directed that the re-sentencing process should be conducted in accordance with the legal principles and guidelines applicable to such cases.

Orders