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2   The Periodic Detention of Prisoners Act has been repealed but by virtue of Schedule 5 of the Crimes (Administration of Sentencing) Act 1999 its provisions continue to have effect in this application since it was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 a periodic detention order is cancelled under s 25 the person the subject of the order must serve any unexpired portion of the sentence to which the order applied by way of full-time imprisonment. However, that requirement is made subject to the discretion to make a parole order under subs (4) of that section.

6   The same subsection provides that the Court may direct that any unexpired portion of the sentence to which the order relates is to be taken to consist of a minimum term and an additional term as set forth under Pt 2 of the Sentencing Act 1989.

7 The Sentencing Act has now been repealed and I take these provisions to apply mutatis mutandis to the relevant part of the Crimes (Sentencing Procedure) Act 1999, particularly s 44, which empowers the Court to set a term of sentence and a non-parole period.

8 It was very fairly submitted by Mr Bartels on behalf of the applicant that in those circumstances consideration may be given to imposing a non-parole period which is less than three-quarters of the term of the sentence: see Crimes (Sentencing Procedure) Act 1999 s 44(2)).

9   The respondent has given evidence which I find impressive. As the judgment of Allen J shows, the respondent was very closely associated with his co-offender and subject to undue pressure from her. The respondent has told the Court, and I accept, that she was released from the sentence of full-time imprisonment which was imposed on her towards the end of 1997 and her presence became once again the source of considerable difficulty for the respondent. She brought improper pressure to bear upon him, giving him great difficulty in his personal life and causing him to be confused and depressed and to have a feeling of hopelessness. It was in those circumstances, I think, that he stopped attending periodic detention, which he had then successfully carried out to the second stage of the programme, although he remained in the area where he was living on the Central Coast, and never attempted to hide himself or conceal the fact that was not attending.

10   His record shows that he is a good man. The fact that he gave himself up shows that the process of rehabilitation is well in hand and that he wants to see the end of this business at last. He has told the Court that it has gone on too long.

11   In all the circumstances, I think I ought not to require him to serve the whole of the seventy-three weeks in full-time custody but to provide that he have one year of that period in the community on parole so that he can try to get this matter behind him and have the assistance of the Probation and Parole Service in the continuation of his rehabilitation.

12   The reasons that I have given, together with the fact that the applicant continuously served his sentence well into Stage 2 and the fact that in recent times he has been incarcerated in mid-week as well as weekend detention, constitute the reasons why I intend to impose a non-parole period which is less than three-quarters of the term of imprisonment that I am obliged to impose. The balance of the sentence now unexpired is seventy-two weeks and two days.

13   The orders I make are these:

1. The periodic detention order made by Allen J on 19 April 1996 is cancelled under s 25 Periodic Detention of Prisoners Act 1981.

2. I direct that the provisions of the Crimes (Sentencing Procedure) Act as to the provision of a non-parole period and a parole period should apply to the sentence.

3. I direct the respondent to serve a non-parole period of twenty weeks and two days commencing today and expiring on 21 October 2000 and a parole period of fifty-two weeks commencing on 22 October 2000 and expiring on 21 October 2001. I direct his release to parole on 21 October 2000.

14   I think it unnecessary to set conditions of parole.

**********

Last Modified: 09/26/2000