R v Bruce

[2000] NSWCCA 39

CITATION:	R v Bruce [2000] NSWCCA 39
FILE NUMBER(S):	CCA 60285/99
HEARING DATE(S):	Friday 25 February 2000
JUDGMENT DATE:	25 February 2000
PARTIES :	Malcolm Harry Bruce (applicant) Regina (respondent)
JUDGMENT OF:	Hidden J at 1; Carruthers AJ at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0800
LOWER COURT JUDICIAL OFFICER :	Woods QC DCJ

COUNSEL :	P Byrne SC (applicant) P Hock (Crown)
SOLICITORS:	Peter Ash & Associates (applicant) Director of Public Prosecutions (respondent)
CATCHWORDS:	CRIMINAL LAW - Sentence - whether special circumstances
LEGISLATION CITED:	Sentencing Act 1989
CASES CITED:	R v Kalache (2000) NSWCCA 2 R v Moffitt (1990) 20 NSWLR 114 R v Sellen (1991) 57 ACrim R 313
DECISION:	Leave to appeal granted. Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60285 of 1999

HIDDEN J
CARRUTHERS AJ

Friday 25 February 2000

Regina v Malcolm Harry Bruce

Judgment - ex-tempore

1     HIDDEN J: The applicant, Malcolm Harry Bruce, pleaded guilty before Woods DCJ to supplying commercial quantities of drugs, namely, methadone, cocaine and ecstasy. On each charge his Honour sentenced him to concurrent terms of five years imprisonment, comprising a minimum term of three years and nine months, commencing on the date when the sentence was passed, and an additional term of one year and three months. The applicant seeks leave to appeal against those sentences.

2     Given the way the application has been argued, it is unnecessary to state the facts giving rise to the charges. It is sufficient to say that they arose from the applicant’s association with one Leslie Kalache, whose own substantial involvement in drug trafficking in this State can be gleaned from the decision of this Court in R v Kalache (2000) NSWCCA 2.

3     The applicant entered his pleas of guilty early. He is now sixty-two years old. He has a criminal record but it is of little significance for present purposes, and this is his first custodial sentence.

4     Apart from the period when he himself became involved in drug abuse, and in turn involved in these offences, his background is otherwise creditable. His Honour described him as a "knockabout character" and he was highly spoken of by a number of witnesses, who portrayed him as a devoted family man and a man helpful and generous to others in need. By the time he came for sentence he had abandoned his drug abuse and had already made substantial progress towards rehabilitation.

5     No argument was addressed before us against the five-year effective sentence. The only submission was that his Honour should have found special circumstances warranting a different proportion between minimum and additional terms. It is clear that the matter of special circumstances was argued but in his Honour’s remarks on sentence he simply observed, without elaboration, that he did not find any.

6     Before us Mr Byrne SC, who appeared for the applicant, pointed to four matters which, it was said, dictated a finding of special circumstances: firstly, his early pleas of guilty to the charges; secondly, his mature age and the absence of any prior experience of imprisonment; thirdly, his better than average prospects of rehabilitation upon his release and fourthly, an illness which it was said would render his imprisonment more onerous.

7     That last matter is a reference to a medical report that was before his Honour by a general practitioner who had treated the applicant over a long period of time. The effect of that report was that more recently the doctor had treated him for severe depression arising from his withdrawal from his drug abuse. Although the report is not entirely clear upon this, it is reasonable to infer that the depression endured at the time of sentence.

8     Mr Byrne submitted that the condition was one which should have been taken into account by his Honour on the question of special circumstances, relying to some extent by analogy upon the decision of this Court in R v Sellen (1991) 57 ACrim R 313. Mr Byrne also relied upon decisions of this Court from which it is clear that the discretion imposed by s5(2) of the Sentencing Act 1989 to find special circumstances should not be unduly circumscribed and might be enlivened by a wide variety of factors. Mr Byrne took us back to the classic exposition of that subsection by Wood J (as he then was) in R v Moffitt (1990) 20 NSWLR 114 at pp120-121.

9     The fact remains, however, that the clear effect of authority in this Court on the question of special circumstances is that, for one reason or another, it must be demonstrated that there is a purpose to be served by a longer than usual additional term. That is not to deny that there can be cases in which the minimum term is reduced for no other reason than that there are particularly onerous conditions of custody imposed upon the prisoner.

10     The prisoner’s depression, whilst it has its origins in his withdrawal from drug abuse, is nonetheless a condition which no doubt many prisoners suffer from, merely from the fact of imprisonment. It is a condition which is amenable to treatment and appropriate treatment is available within the prison system. So much is clear from the report of Dr Olaf Nielssen, which we received this morning in the event of re-sentencing.

11     The other matters relied upon, that is, the applicant's early pleas of guilty, his maturity, the fact that this is his first experience of imprisonment and the fact of his better than usual prospects of rehabilitation are matters to which his Honour had regard in arriving at the overall sentence of five years.

12     This is indeed a very sad case. It is tragic that a man with this applicant’s background should so late in life have gone seriously off the rails and find himself in the predicament he now faces.

13     Nevertheless, fortunately, he has made considerable strides towards his rehabilitation and there is every reason to believe that he will maintain that course upon his release. As the Crown prosecutor correctly pointed out, the additional term of fifteen months is enough time to foster that process.

14     This is a case where it might have been open to his Honour, in the light of this material, to find special circumstances, but I cannot conclude that his Honour was in error in not doing so for the reasons I have enunciated. I would propose that leave to appeal be granted but that the appeal be dismissed.

15     CARRUTHERS AJ: I agree.

16     HIDDEN J: The orders of the Court will be those which I have proposed.

**********