DPP (NSW) v Fordham; DPP (NSW) v Byrne [2010] NSWSC 958

DPP (NSW) v Fordham; DPP (NSW) v Byrne [2010] NSWSC 958

The offences proven against Fordham (one count under s 6(1)) and Byrne (multiple counts under ss 5(1)(a) and 6(1)) were committed in extenuating circumstances, including reliance on legal advice suggesting the broadcast was unlikely to breach the Listening Devices Act, and both had good character and no prior convictions. Accordingly, the discretion under section 10(1)(a) of the Crimes (Sentencing Procedure) Act was exercised to dismiss the charges without conviction for each offence proved.

Parties
Prosecutor: Director of Public Prosecutions (NSW); Defendant: Ben Thomas Fordham; Defendant: Andrew Byrne
Jurisdiction
Australia
Judgment Date
27 August 2010
Procedural Posture
Criminal / Sentencing
Outcome
Summonses dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act for all proven offences without conviction.
Legal Topics
Listening Devices Act Offences, Sentencing Principles, Section 10 Dismissal, Broadcasting and Privacy
Criminal Law Listening Devices Act Offences Sentencing Principles Section 10 Dismissal Broadcasting and Privacy

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Parties

Director of Public Prosecutions (NSW)

Prosecutor

Ben Thomas Fordham

Defendant

Andrew Byrne

Defendant

Procedural Posture

Criminal / Sentencing

Legal Issues

  1. 1 What is the appropriate sentence for offences under sections 5(1)(a) and 6(1) of the Listening Devices Act 1984?
  2. 2 Are there extenuating circumstances justifying dismissal of charges without conviction under section 10(1)(a) of the Crimes (Sentencing Procedure) Act?
  3. 3 Do the defendants' good character, lack of criminal antecedents, and legal advice received mitigate the seriousness of the offences?

Ratio Decidendi

The offences proven against Fordham (one count under s 6(1)) and Byrne (multiple counts under ss 5(1)(a) and 6(1)) were committed in extenuating circumstances, including reliance on legal advice suggesting the broadcast was unlikely to breach the Listening Devices Act, and both had good character and no prior convictions. Accordingly, the discretion under section 10(1)(a) of the Crimes (Sentencing Procedure) Act was exercised to dismiss the charges without conviction for each offence proved.

Court Disposition

Summonses dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act for all proven offences without conviction.

Orders

  • In respect of the offence under s 6(1) of the Listening Devices Act by Mr Fordham on 28 May 2008, offence proved but summons dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act.
  • In respect of each of the four offences against Mr Byrne for breaches of ss 5(1)(a) and 6(1) of the Listening Devices Act, offences proved but each summons dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act.