R v Byrne - [2010] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Byrne [2010] QCA 33

PARTIES:

R
v
BYRNE, John James
(applicant/appellant)

FILE NO/S:

CA No 215 of 2009
SC No 755 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2010

JUDGES:

McMurdo P, Keane JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed, only to the extent of deleting the order that the non-parole period be fixed at three years and six months, and substituting an order that the non-parole period be fixed at 18 months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of fraud and one count of dealing in proceeds of crime in excess of $1,000,000 – the applicant was sentenced to a total of six years imprisonment with a non-parole period fixed after three and a half years – the applicant did not fully appreciate the seriousness of his offending – the sentencing judge was not aware of sentences imposed on the instigators of the applicant's offending – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 408C(1)(c), s 408C(2)(d)
Crimes Act 1914 (Cth), s 16F
Criminal Code Act 1995 (Cth), s 400.3(1)

R v Chan, unreported, Supreme Court of Queensland, Atkinson J, SC No 1489 of 2009, 16 December 2009, considered
R v Foster [2009] 1 Qd R 53; [2008] QCA 90, considered
R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259, considered
District Court of Hong Kong Special Administrative Region, Criminal Case No 38 of 2008, Deputy District Judge Glass, 9 October 2008, considered

COUNSEL:

The applicant appeared on his own behalf
G R Rice SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant John James Byrne, pleaded guilty to one count of fraud under s 408C(1)(c) and (2)(d) Criminal Code (Qld) (count 1) and one count of dealing in proceeds of crime in excess of $1,000,000 under s 400.3(1) Criminal Code (Cth) (count 2). He was sentenced on 13 August 2009 in the Supreme Court to three and a half years imprisonment on count 1 and six years imprisonment with a non-parole period fixed after three and a half years on count 2. He applies for leave to appeal against that sentence, contending that it is manifestly excessive. Although legally represented at sentence, he was self-represented in this application.

The circumstances of the offending

The prosecutor placed the following account of the offences before the sentencing court. The first offence occurred on 15 October 2007 when Byrne attended the Coorparoo…

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 [2010] QCA 33
Case: [2010] QCA 33
Decision Date: 26 February 2010

CaseChat Overview and Summary

In the case of R v Byrne, the applicant was convicted of one count of fraud and one count of dealing in proceeds of crime in excess of $1,000,000. The applicant was sentenced to a total of six years imprisonment with a non-parole period fixed at three and a half years. The applicant appealed against his sentence, submitting that it was manifestly excessive. The applicant argued that he did not fully appreciate the seriousness of his offending and that the sentencing judge was not aware of sentences imposed on the instigators of the applicant's offending.

The legal issues before the court were whether the sentence was manifestly excessive and whether the applicant's lack of appreciation of the seriousness of his offending was a relevant factor in determining the appropriate sentence. The court noted that the applicant's offending was serious and warranted a significant sentence. However, the court also noted that the applicant did not fully appreciate the seriousness of his offending and that the sentencing judge was not aware of sentences imposed on the instigators of the applicant's offending. The court held that the sentence was manifestly excessive and that the applicant's lack of appreciation of the seriousness of his offending was a relevant factor in determining the appropriate sentence.

The court found that the sentence was manifestly excessive because it did not take into account the applicant's lack of appreciation of the seriousness of his offending and the sentences imposed on the instigators of the applicant's offending. The court held that the appropriate sentence would have been one that took into account these factors. The court allowed the appeal and substituted a sentence with a non-parole period of 18 months. The court noted that this sentence was sufficient to achieve the objectives of punishment, deterrence, and rehabilitation.

The final orders were that the application for leave to appeal against sentence was granted and that the appeal was allowed, only to the extent of deleting the order that the non-parole period be fixed at three and a half years, and substituting an order that the non-parole period be fixed at 18 months.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed, only to the extent of deleting the order that the non-parole period be fixed at three years and six months, and substituting an order that the non-parole period be fixed at 18 months.

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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CITATION:	R v Byrne [2010] QCA 33
PARTIES:	R v BYRNE, John James (applicant/appellant)
FILE NO/S:	CA No 215 of 2009 SC No 755 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2010
JUDGES:	McMurdo P, Keane JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed, only to the extent of deleting the order that the non-parole period be fixed at three years and six months, and substituting an order that the non-parole period be fixed at 18 months.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of fraud and one count of dealing in proceeds of crime in excess of $1,000,000 – the applicant was sentenced to a total of six years imprisonment with a non-parole period fixed after three and a half years – the applicant did not fully appreciate the seriousness of his offending – the sentencing judge was not aware of sentences imposed on the instigators of the applicant's offending – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 408C(1)(c), s 408C(2)(d) Crimes Act 1914 (Cth), s 16F Criminal Code Act 1995 (Cth), s 400.3(1) R v Chan, unreported, Supreme Court of Queensland, Atkinson J, SC No 1489 of 2009, 16 December 2009, considered R v Foster [2009] 1 Qd R 53; [2008] QCA 90, considered R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259, considered District Court of Hong Kong Special Administrative Region, Criminal Case No 38 of 2008, Deputy District Judge Glass, 9 October 2008, considered
COUNSEL:	The applicant appeared on his own behalf G R Rice SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent