R v Bryant - [2003] NSWCCA 34

CITATION: R v Bryant [2003] NSWCCA 34

HEARING DATE(S): 21/02/03

JUDGMENT DATE:
21 February 2003

JUDGMENT OF: James J at 1; Greg James J at 20

DECISION: Leave to appeal granted - Appeal dismissed

PARTIES :
Regina v Matthew John BRYANT

FILE NUMBER(S): CCA 60497/02

COUNSEL: CB Craigie SC - Applicant
CD Frearson - Crown

SOLICITORS: DJ Humphreys - Applicant
SE O'Connor - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0166

LOWER COURT
JUDICIAL OFFICER : Keleman DCJ

060497/02

JAMES J
GREG JAMES J
FRIDAY 21 FEBRUARY 2003

REGINA v MATTHEW JOHN BRYANT

Judgment

1 JAMES J: The Court is in a position to give judgment. Matthew John Bryant has applied for leave to appeal against a sentence imposed on him in the District Court on 26 April 2002 by his Honour Judge Keleman, after he had pleaded guilty to a charge of assault with intent to rob whilst armed with an offensive weapon, namely a knife. Assault with intent to rob whilst armed with an offensive weapon is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. Judge Keleman sentenced the applicant to a term of imprisonment for 5 years commencing on 21 October 2001, the date on which the offence was committed and the applicant was arrested and taken into custody, with a non-parole period of 3 years.

2 In his remarks on sentence his Honour summarised the objective facts of the offence in a way which has not been the subject of any criticism on the hearing of this application.

“Early on the morning of Sunday 21 October 2001, the prisoner obtained from his home a knife, which had a ten centimetre blade, and walked directly to the Kirrawee Bakery in Oak Road Kirrawee. The prisoner entered the bakery and told the owner of the bakery that he wanted to look around. He then left the bakery about seven minutes later and appeared to be looking in nearby shops. The prisoner returned to the bakery moments later and placed a plastic bag on the service counter which separated the prisoner from the shop owner. The prisoner then took the knife from a pocket in his pants and said, ‘can you fill the bag, I am very hungry’. The shop owner moved back from the counter and looked for something to use for protection. The prisoner then turned and ran from the bakery. He was pursued for a short distance by the shop owner and was seen running south towards President Avenue Kirrawee. Shortly after, at 8am, the prisoner was spoken to by police outside his residence in President Avenue. The prisoner matched the description that had been provided to police over the police radio. He was subsequently searched and a black handled knife was found secreted in his sock and he was arrested and conveyed to Sutherland Police Station. At the time of his arrest he stated to police that he did not hurt anyone…

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 Bryant

Details

AGLC: R v Bryant [2003] NSWCCA 34
Case: [2003] NSWCCA 34
Decision Date: 21 February 2003

CaseChat Overview and Summary

In the matter of Regina v Matthew John Bryant, the applicant, Matthew John Bryant, sought leave to appeal against a sentence imposed by his Honour Judge Keleman in the District Court. Bryant had pleaded guilty to the charge of assault with intent to rob whilst armed with an offensive weapon. The maximum penalty for this offence under s 97(1) of the Crimes Act is imprisonment for 20 years. The District Court Judge sentenced Bryant to a term of imprisonment for 5 years, with a non-parole period of 3 years. The Court of Criminal Appeal was required to decide whether the sentence imposed by the District Court Judge exceeded the upper limit of a proper exercise of his sentencing discretion.

The Court of Criminal Appeal found that the District Court Judge had expressly taken into account all of the matters sought to be relied on by counsel for Bryant. The Court considered that the District Court Judge was sentencing Bryant for the serious offence of assault with intent to rob whilst armed with an offensive weapon. Although Bryant did not succeed in actually stealing anything, the guideline judgment in Henry could properly be regarded by his Honour as affording some guidance. The Court also considered that the District Court Judge's finding that Bryant had only reasonable prospects of rehabilitation was a finding that was open to his Honour.

Ultimately, the Court of Criminal Appeal found that the sentence imposed by the District Court Judge did not exceed the upper limit of a proper exercise of his sentencing discretion. The Court granted leave to appeal but dismissed the appeal against sentence. The Court found that the District Court Judge had properly considered the relevant factors in imposing the sentence on Bryant.

In conclusion, the Court of Criminal Appeal found no error in the District Court Judge's sentencing of Bryant. The Court granted leave to appeal but dismissed the appeal against sentence, finding that the sentence imposed by the District Court Judge was within the proper range of sentences for the offence committed by Bryant.

Orders