Darren Michael Brandy v David Anthony Crowe

[2007] ACTSC 67

DARREN MICHAEL BRANDY v DAVID ANTHONY CROWE
[2007] ACTSC 67 (17 August 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 15 of 2007

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               17 August 2007

IN THE SUPREME COURT OF THE       )
  )          No. SCA 15 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:DARRYN MICHAEL BRANDY

Appellant

AND:DAVID ANTHONY CROWE

Respondent

ORDER

Judge:  Higgins CJ
Date:  17 August 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The sentence imposed by the Magistrates Court be set aside and substituted with a sentence of six months backdated to 10 November 2006.

1. As the sentence has expired, the appellant be released forthwith without conditions.

1. The penalty imposed by the learned magistrate of 18 months’ imprisonment as a head sentence was, in my view, excessive in the circumstances of the case, albeit that it was an unprovoked assault on a stranger absent any ameliorating circumstance.  It was a single blow.  In the case of someone who has as bad a record as Mr Brandy does, a sentence of imprisonment was appropriate.  However, a sentence of 18 months imprisonment is simply excessive.

1. As I have already indicated, it seems to me that a sentence of no more than six months was warranted.  It may be that if one was, but for the circumstance that that sentence has already been served, doing it afresh one might then consider suspending it on the basis of a good behaviour order.  However, that seems to me to be inappropriate given that Mr Brandy has already spent nine months in custody.

1. Therefore, I simply uphold the appeal, set aside the sentence imposed and in lieu thereof impose a sentence of six months’ imprisonment.  That sentence is to be deemed to have commenced on 10 November 2006, so it is now expired.  Mr Brandy may therefore be released from custody as soon as practicable.  Can I counsel you, Mr  Brandy to continue your treatment and to continue to keep away from illicit substances.  If you do, then I think that we will not see you again, in court at least.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:
Date:                  17 August 2007

Counsel for the appellant:  Mr C Ryan
Solicitor for the appellant:  City First Solicitors
Counsel for the respondent:  Mr C Todd
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  17 August 2007
Date of judgment:  17 August 2007