The Queen v Byrne - [2020] QCA 173

[2020] QCA 173

COURT OF APPEAL

PHILIPPIDES JA

McMURDO JA

HENRY J

CA No 85 of 2020

SC No 1263 of 2019

THE QUEEN

BYRNE, Lachlan Alan Applicant

BRISBANE

WEDNESDAY, 19 AUGUST 2020

JUDGMENT

HENRY J: The applicant seeks an extension of time within which to apply for leave to appeal a sentence. The proposed ground of appeal is that the sentence was manifestly excessive.

The sentence was imposed for drug offences in the Supreme Court on 16 October 2019. The application was filed on 9 April 2020, four months and three weeks after the lapse of the one-month time limit imposed by section 671(1) of the Criminal Code (Qld). The ground in the support of extension was:

“The applicant did not have the required funding in place at the time for legal representation to file his notice of appeal.”

The affidavit filed in support of that ground is enigmatic. It speaks of receiving advice from Legal Aid Queensland “earlier this year” without specifying when. Despite the allusion to Legal Aid, it refers to not having the “necessary funds at the time” to get advice from my “legal representatives”. Which representatives and what time is being referred to is not clear. The affidavit at least acknowledges the applicant was told after sentence of the time in which he needed to file an application. His explanation for not then doing so is that he was not in the right frame of mind. What that means and how long it persisted for is not explained. The affidavit is so imprecise as to implicitly acknowledge there is actually no good reason at all for the delay.

In the absence of a good reason for the application being filed so long out of time, the determinative consideration is whether the complaint that a manifestly excessive sentence has been imposed is sufficiently arguable that, despite the public interest in the finality of litigation, it is in the interests of justice to grant the extension sought; see R v Tait [1999] 2 Qd R 667 at 668; R v DAQ [2008] QCA 75 at [10].

The applicant pleaded guilty to three offences charged on indictment and two charged summarily, namely trafficking in dangerous drugs, possession of lysergide exceeding .004 grams, possession of dangerous drugs simpliciter, possession of a mobile telephone used in connection with trafficking and possession of tainted property. The various possession charges related to items found when police executed a search warrant on the applicant’s property on 8 September 2018. They attracted unchallenged sentences to be served concurrently with a head sentence of seven years imprisonment imposed for the trafficking offence.

The applicant was only 19 when he offended and 20 when sentenced, yet this was not his first conviction for trafficking. He had a previous conviction for trafficking in cannabis over a four-month period when he was only 17 and 18 years old. That was a vigorous but predominantly street-level business involving 30 to 40 customers and a profit of $1,200 to…

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 The Queen v Byrne

Details

AGLC: The Queen v Byrne [2020] QCA 173
Case: [2020] QCA 173
Decision Date: 19 AUGUST 2020

CaseChat Overview and Summary

The case of The Queen v Byrne involves Lachlan Alan Byrne who is the applicant, appealing against the sentence he received for drug offences. Byrne was sentenced in the Supreme Court on 16 October 2019, and he filed an application for an extension of time to appeal his sentence on 9 April 2020, more than a month past the statutory time limit. The applicant claims that his sentence is manifestly excessive and that he was unable to seek legal representation in time due to a lack of funds. The Court of Appeal was required to decide whether the applicant's application for an extension of time should be granted and whether the sentence imposed was manifestly excessive.

The Court of Appeal held that the application for an extension of time should be refused, as the applicant's claim of manifest excess was so lacking in merit that leave to pursue it out of time should be refused. The Court found that the applicant's explanation for the delay in filing the application was unclear and imprecise, and therefore, there was no good reason for the delay. The Court also found that the sentence imposed was not manifestly excessive, as the head sentence of seven years imprisonment reflected additional discounting to mitigate the potentially crushing consequences of a cumulative sentence upon a still young offender. The parole eligibility date set at about the one-third mark of the total period of relevant imprisonment was a more generous effective outcome than in similar cases. The notion that such a parole date gave rise to an excessive sentence was unsustainable, even in respect of a young offender who embarked upon a sustained period of trafficking in wholesale quantities of schedule one drugs.

The Court of Appeal refused the application for an extension of time and held that the sentence imposed was not manifestly excessive. The Court's order was that the application for an extension of time is refused.

Orders