R v Byrnes - [1999] QCA 234

99.234

COURT OF APPEAL

DAVIES JA THOMAS JA DEMACK J

CA No 126 of 1999
THE QUEEN
v.
MATTHEW JOHN PAUL BYRNES

(Applicant) Appellant

BRISBANE
..DATE 18/06/99
DAVIES JA: Mr Justice Thomas will deliver his reasons
first.

THOMAS JA: Shortly before Christmas last year this applicant was at a shopping centre car park and broke into a car using a screwdriver. He was convicted of entering a motor vehicle with intent to steal and possession of things used in connection with unlawful entry.

Because he was then on parole pursuant to other offences, including unlawful use of a motor vehicle, he became liable to serve the balance of the unexpired term which was a little over one and a half years.

The applicant is 20 years of age. He was sentenced to nine months imprisonment cumulative upon the unexpired portion of the previous sentence. Further, a so-called global parole recommendation of 12 months was made after the date of the present sentence, which meant that a new parole consideration date was set at 24 March 2000.

The applicant's prior criminal history is not extensive.
But it includes previous convictions of breaking,
entering and of unlawful use of a motor vehicle and of

stealing and one of possession of dangerous drugs, all

of these being committed when he was 17 or 18.

2

180699 D.1 T06/JW5 M/T COA 137/99
It seems that he had not seriously re-offended for the
better part of two years preceding the present offence,
although it is noted that he had been in custody for
part of that period.

His major previous experience in the Courts was in 1997 when the sentence was imposed upon which he had been released on parole at the time of the present matter. On that occasion, in 1997, he had been sentenced to two and a half years imprisonment with a recommendation for parole after serving 10 months. Those sentences were a re-sentence for older offences of unlawful use of a motor vehicle, dangerous driving and stealing. In addition he became liable to a further month (cumulative) because of breach of a bail condition.

The circumstances of the offence in question are that the applicant was seen breaking into a car at a shopping centre car park. A witness called security. The applicant had used an ordinary screwdriver and was also found in possession of a small file. He had left the vehicle when apprehended and had not taken anything. Damage to the car was $100.

He was detained by the security guard and police
attended. He initially denied that he had been the
offender. He declined to be interviewed by police.
However, he did plead guilty.
180699 D.1 T06/JW5 M/T COA 137/99
The Crown submitted that it was a late plea of guilty
because he had not pleaded guilty on the first return of
the indictment. However, his plea of guilty occurred
one week later and it seems to me that the criticism of
his plea is highly technical. In…

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 Byrnes

Details

AGLC: R v Byrnes [1999] QCA 234
Case: [1999] QCA 234
Decision Date: 18/06/1999

CaseChat Overview and Summary

The case of R v Byrnes involves Matthew John Paul Byrnes, who was convicted of entering a motor vehicle with intent to steal and possession of tools used in connection with unlawful entry. Byrnes was on parole at the time of the offence, which occurred in a shopping centre car park. He was sentenced to a cumulative nine-month imprisonment, which was added to the unexpired portion of a previous sentence, and a parole recommendation of 12 months was made. The Crown appealed against the sentence, arguing that Byrnes's parole eligibility should have been recalculated to start only after the completion of the previous sentence. The appeal was heard by the Court of Appeal, consisting of Justices Davies, Thomas, and Demack.

The central legal issue before the Court of Appeal was whether the sentencing judge had correctly calculated Byrnes's parole eligibility date in light of the cumulative sentence. The Court had to determine whether the judge should have disregarded the previous sentence when calculating the new parole date, as suggested by the Crown. This involved interpreting the relevant legal principles regarding cumulative sentences and parole eligibility as set out in previous cases, such as R v Pepper and Cornwall. The Court also considered the appropriate quantum of the cumulative sentence given the nature and circumstances of the offence and Byrnes's background.

The Court of Appeal found that the sentencing judge had erred in calculating the parole eligibility date, as it effectively deprived Byrnes of any possibility of parole consideration in relation to the period covered by the previous sentence. This error led to an excessive sentence. The Court concluded that a cumulative sentence was appropriate but should be six months, as argued by Byrnes's counsel. The Court fixed a new parole date approximately halfway through the total of the old sentences and the new cumulative sentence, resulting in a date of 24 August 1999. The Court granted leave to appeal, set aside the original sentence, and imposed a six-month cumulative sentence with a parole consideration date of 24 August 1999.

Orders