R v Byrnes; ex parte A-G (Qld) - [2011] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

R v Byrnes; ex parte A-G (Qld) [2011] QCA 40

PARTIES:

R
v
BYRNES, Gerard Vincent
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 246 of 2010
DC No 894 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

11 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2011

JUDGES:

Chief Justice and Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to serious violent offences of a sexual nature against complainants under 12 years of age – where respondent sentenced to 10 years imprisonment – where appellant submitted that sentence failed to give weight to the seriousness of offending, number of complainants and position of authority of the respondent – whether sentence manifestly inadequate

Criminal Code 1899 (Qld), s 669A
Penalties and Sentences Act 1992 (Qld), s 161A, s 161B

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
R v D [2003] QCA 88, distinguished
R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, considered
R v Ellis (1986) 6 NSWLR 603, cited
R v HAV [2009] QCA 259, followed
R vMBG & MBH [2009] QCA 252, distinguished
R v TS [2009] 2 Qd R 276; [2008] QCA 370, followed
R v ZA; ex parte A-G (Qld)[2009] QCA 249, distinguished

COUNSEL:

A W Moynihan SC, with A D Anderson, for the appellant
M J Byrne QC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Peter Shields Lawyers for the respondent

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Muir JA. I agree that the appeal should be dismissed, for those reasons.

[2] MUIR JA:Introduction The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship, 10 counts of rape and 33 counts of indecent treatment of a child under 16 with the circumstance of aggravation that the complainant was under 12 years of age. He was sentenced to 10 years imprisonment for each of the maintaining and rape offences and to seven years imprisonment for each of the indecent treatment offences. Each term of imprisonment was ordered to be served concurrently. By operation of ss 161A and 161B of the Penalties and Sentences Act 1992 (Qld), the respondent was convicted of serious violent offences with the consequence that he was required to serve 80 per cent of the head sentence of 10 years before becoming eligible for parole.

[3] The appellant Attorney-General appealed on the grounds that the sentences imposed were inadequate.

The circumstances of the offending

[4] The subject offences were committed over a…

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.

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Details

Case: [2011] QCA 40
Decision Date: 11 March 2011

CaseChat Overview and Summary

The appeal in this case was brought by the Attorney-General of Queensland against the sentence imposed on Byrnes, who had pleaded guilty to serious violent offences of a sexual nature against multiple complainants under the age of 12. The Attorney-General argued that the sentence of 10 years imprisonment was manifestly inadequate given the gravity of the crimes committed, the number of victims, and the respondent's position of authority. The Court of Appeal was tasked with determining whether the sentence was so inadequate that it needed to be set aside and a new sentence imposed.

The Court of Appeal considered the severity of the crimes and the need to ensure public protection and deterrence. It examined the sentencing principles applicable to such offences, including the need to reflect the gravity of the offending and the culpability of the offender. The Court noted that the sentencing judge had taken into account the serious nature of the offences, the vulnerability of the victims, and the respondent's position of trust. However, the Attorney-General argued that the sentence did not adequately reflect the seriousness of the offending and the number of complainants.

After reviewing the case, the Court of Appeal determined that the sentence was not manifestly inadequate. The Court found that the sentencing judge had appropriately considered the relevant factors and had imposed a sentence that was commensurate with the gravity of the offences. The Court held that the sentence reflected the seriousness of the crimes and the need to protect the community and deter similar offences. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the Court of Appeal were that the appeal be dismissed and the sentence of 10 years imprisonment remain in place. The Court emphasized the importance of ensuring that sentences for serious violent offences adequately reflect the gravity of the offending and protect the community. However, in this case, the Court found that the sentence imposed was appropriate and did not need to be altered.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Byrnes; ex parte A-G (Qld) [2011] QCA 40
PARTIES:	R v BYRNES, Gerard Vincent (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 246 of 2010 DC No 894 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	11 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	17 February 2011
JUDGES:	Chief Justice and Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to serious violent offences of a sexual nature against complainants under 12 years of age – where respondent sentenced to 10 years imprisonment – where appellant submitted that sentence failed to give weight to the seriousness of offending, number of complainants and position of authority of the respondent – whether sentence manifestly inadequate Criminal Code 1899 (Qld), s 669A Penalties and Sentences Act 1992 (Qld), s 161A, s 161B AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited R v D [2003] QCA 88, distinguished R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, considered R v Ellis (1986) 6 NSWLR 603, cited R v HAV [2009] QCA 259, followed R vMBG & MBH [2009] QCA 252, distinguished R v TS [2009] 2 Qd R 276; [2008] QCA 370, followed R v ZA; ex parte A-G (Qld)[2009] QCA 249, distinguished
COUNSEL:	A W Moynihan SC, with A D Anderson, for the appellant M J Byrne QC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Peter Shields Lawyers for the respondent