Byrne v R - [2014] NZCA 32

IN THE COURT OF APPEAL OF NEW ZEALAND

CA802/2013
[2014] NZCA 32

BETWEEN	AMY JANE BYRNE Appellant
AND	THE QUEEN Respondent

Hearing:	17 February 2014
Court:	Ellen France, MacKenzie and Mallon JJ
Counsel:	A Stevens for Appellant J E Mildenhall for Respondent
Judgment:	24 February 2014 at 11.30 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

B The sentence of 12 months’ imprisonment is quashed.

CWe substitute a sentence of three months and two weeks’ imprisonment together with an order for reparation of $600.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

Ms Byrne was sentenced to 12 months’ imprisonment following her conviction at trial on a charge of burglary.[1] She appeals against that sentence contending that a sentence of home detention should have been imposed. In the alternative she contends that the term of imprisonment was manifestly excessive.

Background

[1]R v Byrne DC Dunedin CRI-2012-012-3493, 11 November 2013.

Ms Byrne was working as a security guard in Dunedin. In that capacity she attended alarm activations at one of the cricket clubs in that city. From that work she had knowledge of the deactivation code for that club’s alarm. Using that knowledge she was able to enter the cricket club’s premises in the early hours of 15 December 2011. She took $600 from the till for the club’s bar facilities. To cover her tracks she entered a false record of her whereabouts in her employer’s security log.
Ms Byrne was charged and her trial took place on 23 to 25 September 2013.[2] She was sentenced by Judge Crosbie on 11 November 2013. She continued to deny the offending but was able to pay reparation. By this time she was pregnant with her first child and due to give birth at the end of March 2014. She had been employed as a courier driver for a number of months without any concerns arising. She was aged 31 years and was a first offender. The address where she lived with her partner was assessed as suitable for home detention.
[2]She was charged with stealing cash from the cricket club on two other occasions as well as on the above occasion. At trial she was found not guilty in respect of these other occasions but guilty in respect of the 15 December 2011 occasion.
The Judge adopted a starting point for the offending of 16 months’ imprisonment. He reduced that to 12 months’ imprisonment because of Ms Byrne’s offer to pay reparation and because she was a first offender. Referring to R v Hill, he noted that home detention is a real alternative to imprisonment and can achieve effectively the purposes of denunciation and deterrence depending on the particular case.[3] The Judge rejected home detention as appropriate in this case for two reasons. The first was that the offending was “somewhat unique” in that it arose by an employee in the security industry.[4] The second was that, in comparison with R v Iosefa, there…

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 Byrne v R

Details

AGLC: Byrne v R [2014] NZCA 32
Case: [2014] NZCA 32
Decision Date: 24 February 2014 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Amy Jane Byrne against her sentence of 12 months’ imprisonment imposed following her conviction for burglary. Byrne argued that she should have been sentenced to home detention instead, or that the term of imprisonment was excessive. The appeal was allowed, the sentence was quashed, and a new sentence of three months and two weeks’ imprisonment was imposed, along with an order for reparation of $600.

The primary legal issue was whether the sentencing judge had erred in imposing a 12-month prison sentence instead of a sentence of home detention. The Court of Appeal considered whether home detention was appropriate given the nature of the offence and the offender’s personal circumstances. The Court also considered whether the original sentence was manifestly excessive.

The Court held that home detention should have been imposed as it was the least restrictive available sentence that met the purposes and principles of sentencing. The Court noted that the offending, while serious due to the breach of trust involved, did not preclude a sentence of home detention. The offender was a first offender, had demonstrated low risk of reoffending, and was able to pay reparation. The Court also noted that the starting point for the sentence was at the higher end of the range and that a lower starting point could have been taken. Given that Byrne had already served part of her sentence in prison, the Court substituted her sentence with a shorter prison term to allow for her immediate release and the opportunity to give birth. The Court also ordered reparation of $600, which Byrne could pay by instalments.

Orders