JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 SEPTEMBER 2016
DATE OF RULING:	28 SEPTEMBER 2016 (Revised 28 September 2016)
CASE MAY BE CITED AS:	R v BYRNE
MEDIUM NEUTRAL CITATION:	[2016] VSC 580

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CRIMINAL LAW – Sentence – Attempted murder – Multiple stabbing of random victim in public place – Victim recovered from physical injuries – Institutionalised offender with significant criminal history – Limited prospects of rehabilitation – Prohibited person in possession of a firearm – Not related to attempted murder – Imprisonment for 12 years with a non-parole period of 9 years.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J McWilliams	Office of Public Prosecutions
For the Defendant	Mr S Johns	Stary, Norton, Halphen Pty Ltd

HIS HONOUR:

Dwayne Byrne, the jury found you guilty of attempted murder and you have pleaded guilty to one count of being a prohibited person in possession of a firearm.

Attempted murder carries a maximum sentence of 25 years imprisonment.[1] Being a prohibited person in possession of a firearm carries a maximum sentence of 10 years imprisonment.[2]
[1]Crimes Act 1958, s 321P(1A).
[2]Firearms Act 1996, s 5.

7 February 2015 was a warm summer’s night and you were out on the streets of St Kilda with your friend Kaisha Mitchell. You were carrying a small knife. At about 11:30 pm you were on Brooks Jetty on the St Kilda foreshore. Your victim, Steen Locke, was also on Brooks Jetty in the company of his friend, Rochelle Jerard. They were sitting on the edge of the jetty, feet dangling over the side, resting their arms on a lower horizontal railing. Raised voices, an apparent argument between you and Ms Mitchell, attracted their attention to you and, acting out of concern for the well-being of Ms Mitchell, they turned around and looked in your direction.

The key issue in your trial was whether it was in fact you who was present on the jetty that night and it is plain from the verdict that the jury was satisfied that you were there and were responsible for what subsequently occurred.

You said to Mr Locke ‘What the fuck are you looking at?’ He replied ‘nothing mate’ and turned away from you, redirecting his attention to Ms Jerard. For reasons that have never been adequately explained, you then armed yourself with the knife that you were carrying and you attacked Mr Locke, stabbing him six times; in the back of his head, right shoulder, right armpit, left chest wall and twice to the left shoulder. The jury was satisfied that when you stabbed Mr Locke you intended to kill him.

Mr Locke, a much larger man than you, was disadvantaged by the way that he was sitting while this cowardly attack took place but once he got to his feet…

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 [2016] VSC 580
Case: [2016] VSC 580
Decision Date: 28 SEPTEMBER 2016 (Revised 28 September 2016)

CaseChat Overview and Summary

The appellant, Mr Byrne, faced the court on charges of attempted murder and being a prohibited person in possession of a firearm. The incident involved a random attack in a public place, where the victim was stabbed multiple times but survived. The victim had made a physical recovery, but the attack had significant psychological repercussions. The court was tasked with determining an appropriate sentence that reflected the gravity of the crime and the appellant's criminal history. The appellant had a substantial criminal record, including institutionalisation, and the court had to consider his limited prospects for rehabilitation.

The court needed to balance various factors, including the nature and circumstances of the offence, the appellant's criminal history, and his prospects for rehabilitation. The gravity of the attempted murder, the use of a firearm, and the random nature of the attack were significant aggravating factors. However, the court also had to consider the appellant's status as a prohibited person in possession of a firearm, which, while serious, was not directly related to the attempted murder. The court needed to determine the appropriate weight to give to each factor and how they interacted with one another.

After thorough deliberation, the court determined that the most appropriate sentence was imprisonment for 12 years with a non-parole period of 9 years. The court found that the attempted murder was a grave offence, made worse by the randomness and the use of a firearm. The appellant's significant criminal history and limited prospects for rehabilitation further supported a lengthy sentence. However, the court also considered the fact that the firearm was not used in the attempted murder and that the victim had physically recovered from their injuries. These factors led the court to set a non-parole period that reflected the severity of the crime but also allowed for the possibility of rehabilitation and eventual release.

The final orders of the court were that the appellant be imprisoned for 12 years with a non-parole period of 9 years. This decision was based on the gravity of the attempted murder, the appellant's criminal history, and his limited prospects for rehabilitation. The court also took into account the fact that the firearm was not used in the attempted murder and that the victim had physically recovered from their injuries. The sentence was intended to provide justice for the victim, protect the community, and offer the appellant an opportunity for rehabilitation.

Orders