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R v Byrne

R v Byrne

Case [2015] ACTSC 113 8 May 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R V BYRNE
Citation:	[2015] ACTSC 113
Hearing Date(s):	23 April 2015
DecisionDate:	8 May 2015
Before:	Refshauge J
Decision:	1. Daniel Byrne be convicted of causing grievous bodily harm to Timothy Gerald McCarthy by an unlawful act on 24 July 2011; 2. Daniel Byrne be sentenced to twelve months imprisonment to commence on 8 September 2014; 3. The sentence be suspended on 8 May 2015 for a period of twelve months; 4. Daniel Byrne be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a probation condition that he accept supervision of the Director-General or her delegate for a period of two years, or such lesser period as the person supervising him deems appropriate, and that he obey all reasonable directions of the person supervising him.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – Offences against the person –Causing grievous bodily harm by an unlawful act – Major, life-threatening injuries – Offending whilst on Conditional Liberty – Good prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT), s 25 Crimes (Sentence Administration) Act 2005 (ACT), s 320H Crimes (Sentencing) Act 2005 (ACT), ss 7, 12(3), 33
Cases Cited:	Blanco (1999) 106 A Crim R 303 Byrne v The Queen [2014] ACTCA 31 Gilmore (1979) 1 A Crim R 416 Gordon (1994) 71 A Crim R 459 Hawkins v Hawkins (2009) 3 ACTLR 210 Hearne (2001) 124 A Crim R 451 Muldrock v The Queen (2011) 244 CLR 120 Ross v R [2012] NSWCCA 161 R v Bloomfield (1998) 44 NSWLR 734 R v Byrne [2013] ACTSC 246 R v Byrne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 345 of 2011). R v Charnock (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 334 of 2011, 4 September 2012) R v DF (No 2) (2012) 6 ACTLR 105 R v Obradovic (Unreported, Australian Capital Territory Supreme Court, Burns J, SCC 148 of 2013, 23 December 2013), R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014), R v Tuala [2015] NSWCCA 8 Sherd v The Queen (2011) 5 ACTLR 290
Parties:	The Queen (Crown) Daniel Byrne (Defendant)
Representation:	Counsel Mr D Sahu-Khan (Crown) Mr J Saeedi (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant)
File Number(s):	SCC 345 of 2011

Refshauge J:

On 23 July 2011, Daniel Byrne, the accused, punched Timothy Gerald McCarthy, the victim, outside the convenience store called “Quick and Go” at the corner of London Circuit and Northbourne Avenue in Civic. Mr Byrne punched Mr McCarthy in the head and then quickly left the scene. Mr McCarthy fell to the ground and hit his head.

Subsequently, police arrested Mr Byrne and he was charged with intentionally inflicting grievous bodily harm on Mr McCarthy.

In circumstances with which I…

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 [2015] ACTSC 113
Case: [2015] ACTSC 113
Decision Date: 8 May 2015

CaseChat Overview and Summary

The case of R v Byrne involved the respondent, Daniel Byrne, charged with causing grievous bodily harm to Timothy Gerald McCarthy by an unlawful act. The incident occurred on 24 July 2011, leading to significant injuries for the victim. The court was required to consider the appropriate sentence for Byrne, taking into account the severity of the harm caused, his offending while on conditional liberty, and his prospects of rehabilitation. The matter was heard and determined in the Supreme Court of the Australian Capital Territory.

The court had to decide whether the sentence should reflect the gravity of the harm caused, Byrne's offending history, and his potential for rehabilitation. The prosecution argued for a custodial sentence due to the severity of the injuries inflicted on the victim, while the defence submitted that Byrne's prospects for rehabilitation and the fact that he was on conditional liberty at the time of the offence warranted a non-custodial sentence. The court considered the principles of sentencing in the context of offences against the person and the specific circumstances of this case.

In delivering the judgment, the court found Byrne guilty of causing grievous bodily harm by an unlawful act. The court recognised the significant harm caused to the victim, but also noted Byrne’s prospects for rehabilitation and his offending while on conditional liberty. The court decided on a sentence that included a period of imprisonment, to be suspended after a certain period, along with supervision and good behaviour obligations. The court concluded that this approach would appropriately balance the need for punishment and rehabilitation.

The court ordered that Daniel Byrne be convicted and sentenced as follows: he be sentenced to twelve months imprisonment to commence on 8 September 2014, with the sentence suspended on 8 May 2015 for a period of twelve months. Byrne was also required to sign an undertaking to comply with the offender’s good behaviour obligations for a period of two years, and accept supervision by the Director-General or her delegate for the same period.

Orders

Orders of the court

1. Daniel Byrne be convicted of causing grievous bodily harm to Timothy Gerald McCarthy by an unlawful act on 24 July 2011;

2. Daniel Byrne be sentenced to twelve months imprisonment to commence on 8 September 2014;

3. The sentence be suspended on 8 May 2015 for a period of twelve months;

4. Daniel Byrne be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a probation condition that he accept supervision of the Director-General or her delegate for a period of two years, or such lesser period as the person supervising him deems appropriate, and that he obey all reasonable directions of the person supervising him.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Byrne [2015] ACTSC 113

Most Recent Citation

R v Freeman-Quay (No 3) [2015] ACTSC 284

Cases citing this decision · 9 of 9 shown

Director of Public Prosecutions v Hagen
[2024] ACTSC 360

…en [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v BS-X [2021] ACTSC 160; 16 ACTLR 238 R v Bandy [2018] ACTSC 261 R v Byrne [2015] ACTSC 113 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Coleman (1990) 47 A Crim R 306 R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 R v Daniel…
R v Daniel (No 2)
[2021] ACTSC 117

…NSWSC 1016 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Alaragi [2020] ACTSC 77 R v Bandy [2018] ACTSC 261 R v Bui [2019] ACTSC 366 R v Byrne [2015] ACTSC 113 R v Cardoso [2003] NSWCCA 15 R v Chapman [2018] ACTSC 57 R v Daniel [2021] ACTSC 64 R v Deng [2017] ACTSC 338 R v Hansen [2011] SASFC 10; 206 A Crim…
R v Davis
[2021] ACTSC 335

…R 302 Grimshaw v Mann [2013] ACTSC 189 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Ayuel [2020] ACTSC 213 R v Bell [2020] ACTSC 37 R v Byrne [2015] ACTSC 113 R v Cowling [2019] ACTSC 138 R v Crawford (No 1) [2020] ACTSC 245 R v Crowther [2019] ACTSC 338 R v Elphick [2021] ACTSC 9 R v Ferguson [1999] NSWCCA…
R v Uluikadavu
[2020] ACTSC 237 Para 1

…In R v Byrne [2015] ACTSC 113, the offender had punched the complainant on the head outside a convenience store in Civic, causing him to fall to the ground and hit his head. The complainant suffered significant head injuries, resulting in ongoing disabilities. At the time of the offence, the offender was 18 years o…
R v Latu
[2019] ACTSC 109 Para 1

…In R v Byrne [2015] ACTSC 113, the offender was sentenced for an offence against s 25 of the Crimes Act which, at that time, carried a maximum penalty of two years’ imprisonment. A one-punch assault resulted in extremely severe head injuries to the victim. The offender had spent seven months in custody. He was 18 y…
R v Keyes
[2016] ACTSC 387 Para 1

…s easy to reconcile with one another, especially so far as relative seriousness is concerned. I have pointed to some curiosities of this in R v Byrne [2015] ACTSC 113 at [51].…
R v Harmouche
[2015] ACTSC 381 Para 1

…r of such decisions is very small and cannot be said to establish any sort of sentencing practice with respect to offences of this type. In R v Byrne [2015] ACTSC 113, the offender punched the victim once to the head, causing him to fall to the ground and hit his head. The victim suffered a significant brain injury…
R v Pikula
[2015] ACTSC 380 Para 1

…to three decisions: R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014); R v Byrne [2015] ACTSC 113 and R v Freeman-Quay (No 3) [2015] ACTSC 284. They were all cases where sentences have been imposed for the offence of causing harm of negligent act…
R v Freeman-Quay (No 3)
[2015] ACTSC 284 Para 1

…The Court was referred to several cases that were of considerable assistance. These cases included R v Byrne [2015] ACTSC 113, R v Srikandakumar (Unreported, Supreme Court of the ACT, Murrell CJ, 8 April 2014), R v Barbaro (Unreported, Supreme Court of the ACT, Penfold J, 17 June 2010), R v Neish (Unreported, Supre…

View all 9 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Gordon
[2022] ACTCA 48 Para 1

…particular regime reserved for offenders under the age of eighteen years, he was still young enough to be entitled to appropriate consideration. See R v Gordon (1994) 71 A Crim R 459 at 469. I note that the weight to be given to the element of youth does not vary with the seriousness of the offence; indeed, it shou…
R v Tuala
[2015] NSWCCA 8 Para 1

…tempt made to limit its use, I accept it as evidence of the substantial harm which it describes as having been suffered by Mr McCarthy. See R v Tuala [2015] NSWCCA 8 at [78].…
Byrne v The Queen
[2014] ACTCA 31 Para 1

…ppealed to the Court of Appeal which, at the conclusion of the hearing of the appeal, allowed the appeal and granted Mr Byrne bail: Byrne v The Queen [2014] ACTCA 31 at [63]. He did not apply for bail pending appeal and, given the sentence, it is unlikely that it would have been granted. See Sherd v The Queen (201…
R v Daniel Byrne
[2013] ACTSC 246 Para 1

…After a two-day trial before Murrell CJ, without a jury, her Honour, on 27 November 2013, found Mr Byrne guilty of the charge. See R v Byrne [2013] ACTSC 246. On 3 February 2014, he was sentenced to a term of imprisonment to be served as noted above (at [3]). The sentence was directed to commence on 11 January 2014…
Ross v R
[2012] NSWCCA 161 Para 1

…The next case was a decision of the New South Wales Court of Criminal Appeal, Ross v R [2012] NSWCCA 161. This case was also problematic since it, too, involved a different offence, recklessly inflicting grievous bodily harm, the offence for which Mr Byrne was originally charged and convicted but the conviction for…
Muldrock v The Queen
[2011] HCA 39 Para 1

…penalty specified by the legislature is an important yardstick to mark the relative seriousness of an offence. See, for example, Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].…
Sherd v The Queen
[2011] ACTCA 17 Para 1

…Queen [2014] ACTCA 31 at [63]. He did not apply for bail pending appeal and, given the sentence, it is unlikely that it would have been granted. See Sherd v The Queen (2011) 5 ACTLR 290 at 299; [47].…
Hawkins v Hawkins
[2009] ACTSC 148 Para 1

…Accordingly, Mr Byrne had spent exactly seven months in custody pending the appeal. I shall take this period into account when imposing sentence. See Hawkins v Hawkins (2009) 3 ACTLR 210 at 228; [85].…
R v Thawer
[2009] NSWCCA 158

…(2) will significantly depend upon the harm suffered by the victim: R v Mitchell; R v Gallagher [2007] NSWCCA 296; [2007] 177 A Crim R 94; R v Thawer [2009] NSWCCA 158. Her Honour recognised that other factors such as the nature of the attack and the surrounding circumstances were also relevant to the objective seri…
McCullough v R
[2009] NSWCCA 94

…ors such as the nature of the attack and the surrounding circumstances were also relevant to the objective seriousness of the offence: McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439.…
R v Mitchell; R v Gallagher
[2007] NSWCCA 296

…of the objective seriousness of an offence under s 35(2) will significantly depend upon the harm suffered by the victim: R v Mitchell; R v Gallagher [2007] NSWCCA 296; [2007] 177 A Crim R 94; R v Thawer [2009] NSWCCA 158. Her Honour recognised that other factors such as the nature of the attack and the surrounding…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
12(3), 33, 7 4 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
320H 2 mentions
Crimes Act 1900 (ACT)
25 2 mentions (from Para 1)