R v Brady - [2015] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BRADY
[2015] SASC 115
Reasons for Ruling of The Honourable Justice Vanstone
6 August 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
Application to fix a non-parole period - in 1992 the applicant was sentenced to life imprisonment and a non-parole period was set - the non-parole period was increased for further offending both before 1992 and while in custody - having served the non-parole period and been released the applicant committed a further serious offence for which he was sentenced to 6 years imprisonment - whether non-parole period should be imposed - whether s 32(5)(ab) of the Criminal Law Sentencing Act applies so as to require imposition of at least the mandatory minimum non-parole period of 20 years.
Held: the imposition of a non-parole period in these circumstances is governed by s 32(2) rather than s 32(5)(ab) and accordingly there is no obligation to fix the mandatory minimum - in the circumstances a non-parole period should be imposed - non-parole period of 10 years fixed, to commence today.
Criminal Law (Sentencing) Act 1988 (SA) s 32(2), s 32(3), s 32(5)(ab), referred to.
R v Marshal (Unreported, Supreme Court of South Australia, David J, 7 November 2008), applied.
R v Earley [2014] SASC 202, not followed.

R v BRADY
[2015] SASC 115
Criminal

VANSTONE J: Mr Brady applies for a non-parole period pursuant to s 32(3) Criminal Law (Sentencing) Act 1988.
Mr Brady pleaded guilty to murder on 27 October 1992 and was sentenced to life imprisonment, initially with a non-parole period of 14 years and 5 months. The term commenced on the day of sentence but the prisoner had already spent seven months in custody. Later that was reduced in accordance with the Truth in Sentencing legislation to 9 years, 4 months and 19 days. While he was serving that sentence the non-parole period was extended by 15 months on account of a serious assault which he had committed prior to the murder. There were also several assaults committed while serving his sentence, which increased the sentence.
Mr Brady first applied for release on parole at the end of 2002 but that application and a further one were refused. Eventually he was released on 30 January 2008. By that time he had served a total of approximately 15 years and 9 months referrable to the murder, the prior offending and to the assaults.
His response to parole was poor. There were two breaches of conditions which brought him back into custody for short periods.
On 19 April 2009 he committed an offence of aggravated causing harm with intent to cause harm. That offence was committed upon his de facto wife, using a knife. He was found guilty by a jury in the District…

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 R v Brady

Details

AGLC: R v Brady [2015] SASC 115
Case: [2015] SASC 115
Decision Date: 6 August 2015

CaseChat Overview and Summary

The case of R v Brady involved the applicant, who was originally sentenced to life imprisonment in 1992, with a non-parole period set at a certain term. This non-parole period was subsequently increased due to further offending both prior to 1992 and while the applicant was in custody. After serving his non-parole period, the applicant was released and subsequently committed a further serious offence, resulting in a six-year imprisonment sentence. The key issue before the court was whether a non-parole period should be imposed and, if so, whether section 32(5)(ab) of the Criminal Law Sentencing Act applied to require the imposition of at least the mandatory minimum non-parole period of 20 years.

The court considered the applicable legislation and found that the imposition of a non-parole period in this case was governed by section 32(2) rather than section 32(5)(ab). Consequently, there was no obligation to fix the mandatory minimum non-parole period. The court concluded that a non-parole period should be imposed in these circumstances. In determining the appropriate term, the court fixed a non-parole period of 10 years, to commence from the date of the sentencing decision.

The final orders of the court were that a non-parole period of 10 years was to be imposed on the applicant, with effect from the date of the sentencing decision. This outcome balanced the need for public safety and deterrence against the applicant's circumstances and the principles of sentencing proportionality and justice.

Orders