Marsden v Amalgamated Television Services Pty Ltd - [2000] NSWSC 570

CITATION: R v HIGGINS [2000] NSWSC 570

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 70201/95

HEARING DATE(S): 02/06/00

JUDGMENT DATE: 2 June 2000

PARTIES :

REGINA v Bryan James HIGGINS; The Application of the Commissioner of Corrective Services

JUDGMENT OF: Barr J at 1

COUNSEL : None

SOLICITORS: Applicant: P G Bartels
Respondent: In person

LEGISLATION CITED: Crimes (Administration of Sentencing) Act 1999, Sch 5
Crimes (Sentencing Procedure) Act 1999, s 44, s 44(2)
Periodic Detention of Prisoners Act 1981, s 25, s 25(3A). s 27(3), s 27(4)
Sentencing Act 1989, Pt 2

DECISION: See paragraph 13.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
GRAHAM BARR J
Friday, 2 June 2000
70201/95 - REGINA v Bryan James HIGGINS
JUDGMENT
1 HIS HONOUR: Bryan James Higgins was convicted of being an accessory before the fact of wounding with intent to murder. He was sentenced by Allen J to serve three years’ penal servitude by way of periodic detention commencing on 26 April 1996. On 5 May 1998 the Commissioner of Corrective Services applied under the provision of s 25 of the Periodic Detention of Prisoners Act 1981 to cancel the order. The matter was listed on a number of occasions but was not heard in 1998 because the respondent failed to appear. Accordingly, I ordered that a warrant issue for his arrest. It has taken until now for him to be brought before the Court.
2 The Periodic Detention of Prisoners Act has been repealed but by virtue of Schedule 5 of the Crimes (Administration of Sentencing) Act 1999 its provisions continue to have effect in this application since it was commenced before the repeal of the Act.
3 The evidence shows that the respondent applied himself well to the service of his sentence from the time of its commencement until 14 December 1997, a period of well over half its length. During that period he attended or was absent with permission on all except two occasions. Then he stopped attending. For the next four weeks between 19 December 1997 and 11 January 1998 he was absent without leave. He attended the following four weeks, taking him up to 8 February 1998, but after that never attended. The only credits he has for service since then are those which he has earned by virtue of his having been in full-time custody following his surrendering himself to the police station at Gosford on 9 May this year.
4 The evidence shows that calculating the history of the sentence in accordance with the provisions of the Periodic Detention of Prisoners Act and allowing credits where they are due, there are still seventy-three weeks left to serve.
5 S 25(3A) of the Act provides that if the Commissioner applies for cancellation of a periodic detention order and the Court is satisfied that the person subject to the order has failed for three or more detention periods to report as required the Court must cancel the order. S 27(3) provides that if…

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: [2000] NSWSC 570
Decision Date: 2 June 2000

CaseChat Overview and Summary

In the case of Regina v Bryan James Higgins, the court dealt with an application by the Commissioner of Corrective Services to cancel a periodic detention order. Bryan James Higgins was sentenced to three years of periodic detention for being an accessory before the fact of wounding with intent to murder. The application to cancel the periodic detention order arose after Higgins failed to report for detention on three or more occasions, as required under the Periodic Detention of Prisoners Act 1981. The legal issues before the court included whether the periodic detention order should be cancelled and, if so, what sentence should be imposed on Higgins for the unexpired portion of his sentence.

The court, led by Graham Barr J, concluded that the periodic detention order should be cancelled because Higgins had failed to report for detention on multiple occasions. The court noted that Higgins had complied well with the periodic detention requirements until he stopped reporting in December 1997. The court also considered the Sentencing Act 1989 and the Crimes (Sentencing Procedure) Act 1999 in determining the appropriate sentence for the unexpired portion of Higgins' term. Given Higgins' overall good conduct during the first half of his sentence and his voluntary surrender to authorities, the court found that it was appropriate to impose a non-parole period that was less than three-quarters of the remaining term. Barr J also considered the impact of Higgins' co-offender's release from full-time imprisonment on his ability to comply with the periodic detention requirements.

In its final orders, the court cancelled the periodic detention order under section 25 of the Periodic Detention of Prisoners Act 1981 and imposed a new sentence under the Crimes (Sentencing Procedure) Act 1999. Higgins was required to serve a non-parole period of twenty weeks and two days, starting from the date of the judgment, and a parole period of fifty-two weeks. The court also directed his release on parole on 21 October 2000. The court found it unnecessary to set specific conditions for parole.

Orders