R v Bryant
[2014] ACTSC 218
•14 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bryant |
Citation: | [2014] ACTSC 218 |
Hearing Date(s): | 28 July 2014 |
DecisionDate: | 14 August 2014 |
Before: | Penfold J |
Decision: | See [28] to [31] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for three aggravated robberies, one attempted aggravated robbery, and one offence of discharging a sawn-off shotgun – during period of offending, multiple similar offences committed in NSW – offender had served six years of 11-year sentence for NSW offences – totality – substantial concurrency between NSW and ACT sentences to produce effective total sentence of 13 years and two months, with effective total non-parole period of eight years. |
Legislation Cited: | Crimes Act 1900 (ACT), s 27(3)(d) Criminal Code 2002 (ACT), ss 308, 310, 312 |
Cases Cited: | Mill v The Queen (1988) 166 CLR 59 |
Parties: | The Queen (Crown) Nathan Gordon Bryant (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr R Thomas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rosemary Benet & Associates (Offender) | |
File Number: | SCC 139 of 2013 |
Nathan Bryant has pleaded guilty to three charges of aggravated robbery, one of attempted aggravated robbery, and one of discharging a sawn‑off shotgun. There are also three offences, aggravated burglary, theft and aggravated robbery, to be taken into account in sentencing Mr Bryant for the earliest aggravated robbery offence.
These aggravated robbery offences arise under s 310 of the Criminal Code 2002 (ACT) and carry a maximum penalty of 25 years imprisonment. The aggravated burglary, under s 312 of the Code, has a maximum penalty of 20 years, while theft under s308 of the Code and discharging a loaded firearm under s 27(3)(d) of the Crimes Act 1900 (ACT) carry maximum penalties of 10 years imprisonment.
The first offence, in November 2006, was a robbery of the Eastlake Football Club in Griffith. Around 4.00 am, while three employees remained in the club clearing poker machines, Mr Bryant climbed over the back fence into the smoking area and then jemmied open the back door. He entered the club carrying a shotgun, made the three staff lie on the floor and left with $15,724 from the poker machines.
The attempted aggravated robbery and the firearms offence were committed in January 2007 at the Ginninderra Labor Club in Charnwood. Mr Bryant entered the club after it had closed while two employees were still there. He used an implement to open a rear fire door. Mr Bryant approached the barman, Mr Pike, pointed the shotgun at him, and asked for money. When Mr Pike replied in a dismissive way, thinking Mr Bryant was joking, Mr Bryant discharged his shotgun in Mr Pike’s general direction, hitting a computer monitor near Mr Pike. Mr Bryant pointed the shotgun again at Mr Pike, who went to open the cash room. For some reason, Mr Bryant then left the club without taking any money.
Shortly afterwards, Mr Bryant arrived at the Canberra Raiders Sports Club in Gungahlin as the duty manager was leaving after having closed up. Mr Bryant pointed the shotgun at the manager and forced him to take him, Mr Bryant, into the club and unlock the safe. Mr Bryant made the manager lie face down on the floor and took $15,310 from the safe.
Early one morning in March 2007, Mr Bryant held up the McDonald’s at Emu Bank while four employees were working there. Mr Bryant, using his shotgun as a prod, forced two of the employees into the office where one of them was ordered to open the safe. Mr Bryant took $11,455 from the safe and left. One of the employees recognised Mr Bryant as the security guard who had come to McDonald’s several times a week during the previous year to collect cash.
The scheduled offences also involved the Eastlake Football Club and the Emu Bank McDonald’s. About a month before the Eastlake Football Club robbery, Mr Bryant entered the club while staff were clearing the poker machines, and removed bags of money placed on a trolley while a staff member closed the poker machines. The money stolen totalled $46,508. This was a burglary because staff were not aware of Mr Bryant’s presence or his actions, and there was no interaction with them during the theft.
The scheduled robbery from McDonald’s at Emu Bank was committed roughly two weeks after the other robbery at that restaurant. Again he entered early in the morning, and forced the three staff (one of whom had also been present during the earlier robbery) to open the safe. This time, Mr Bryant took a total of $10,542.
Mr Bryant was taken into custody in the ACT on 23 April 2013, and has been in custody ever since. After being charged with the ACT offences, he initially pleaded not guilty on 7 May 2013, and then pleaded guilty to five of the charges on the indictment on 13 May 2014, having indicated those pleas a couple of weeks earlier. The other three charges were scheduled. In March 2014 Mr Bryant’s trial had been listed for August 2014.
10. All the offences, including the scheduled ones, were serious. In all except the aggravated burglary and theft, staff of the businesses concerned were put in fear, and even the aggravated burglary and theft were committed while staff were on the premises and while Mr Bryant was carrying a sawn‑off shotgun.
11. The offences were aggravated by the vulnerability of the victims. The use of a weapon was the statutory aggravating factor, but the use of a shotgun (as distinct from a less dangerous weapon) is also an aggravating factor. I am not convinced that the commission of the robbery for financial gain is an aggravating factor, as suggested by counsel for Mr Bryant, rather than an inherent or at least assumed aspect of the offence of robbery. It might be an aggravating factor if a robbery were committed not for financial gain but for the pleasure of frightening the victims, but that does not seem to be the case here.
12. It is clear that the offences were all planned, although it is possible that Mr Bryant had not actually intended to discharge the shotgun during the Ginninderra Labor Club robbery and did so only in response to the barman’s dismissive reaction to his demands, but it seems that the shotgun was loaded just in case.
As noted, Mr Bryant had collected cash from the McDonald’s at Emu Bank several times in his job as a security guard. It seems likely that knowledge gained through that work had informed at least the McDonald’s robberies and possibly some of the others, but I do not think this rises to the level of abuse of a position of trust.
14. All up, I agree with the submissions of both counsel that Mr Bryant’s offences are slightly above mid-range seriousness.
15. These were Mr Bryant’s first ACT offences. Before being taken into custody in the ACT, he had served six years of an 11-year sentence imposed in New South Wales (NSW) for a series of offences including five armed robberies, two break, enter and steal offences, one offence of being armed with intent and one of possessing a shortened firearm. Those offences were committed before, during and after the period of the ACT offences. This will require careful attention to totality in working out Mr Bryant’s sentences.
16. One of the McDonald’s staff provided a Victim Impact Statement about the effect of the robbery on her. She said:
When this incident happened, it affected me completing my allocated shifts as I didn’t want to be in the store by myself before it opened. This meant that I had to swap shifts with other managers and rearrange my work schedule, which affected myself and other people. To accommodate this I also had to swap some of my classes at university to allow me to complete my new roster.
Once I started doing open shifts again I would ask crew to come in early so I wouldn’t have to be in the store by myself, as I was worried this incident may happen again. I would ask them to watch the security camera to watch that nobody was outside. This is not a normal task that they would do but they did it because they were aware of how I was feeling and knew that it made me feel more at ease.
Before I started an open shift I would circle the car park a couple of times to make sure that no one was around. If I saw some movement or even just a shadow I would have to circle the car park a couple more times before I would get out of the car and run to the store.
After the store closed, I often asked crew to stay back while I finished up my manager duties so I wouldn’t have to be in the store by myself. Being in the store by myself, which did happen a couple of times, made me feel really uneasy. I would continually check the security camera in between tasks, which would make everything take twice as long.
This continued for the 8 months I stayed at this store. …
It took me a while to feel comfortable at home by myself at night and walking to and from the car in the dark. Even now, I don’t like it when people where balaclavas or masks because it makes me feel uneasy. …
After the incident I had to see a counsellor and I found it difficult talking about this experience and reliving it.
Writing this Victim Impact Statement and reliving the incident 7 years later has been difficult. I have tried to move on from the incident but this has brought up some bad memories and feelings. It’s like it is never over.
Mr Bryant did not express any remorse as such to the Pre-Sentence Report author, who considered he was minimising his actions, although the author did report that Mr Bryant had insight into the effect of his actions on the victims and on his parents. A psychiatric assessment provided by Dr William Knox said that Mr Bryant had expressed to him what Dr Knox took to be genuine remorse. Dr Knox also reported that Mr Bryant had described his decision to commit the robberies as “just a stupid choice at the time”.
18. Mr Bryant is now 32. He was 23 when the first of the NSW offences was committed.
19. The Pre-Sentence Report provides information about Mr Bryant’s background and circumstances as follows:
Mr Bryant was born and raised in Marulan, NSW where he resided with his parents and brother who remain supportive of him. Mr Bryant described his childhood as supportive and ‘normal’ albeit for his weight issues and being socially isolated from his peers. The offender’s mother reported that her son had not demonstrated anti social behaviour prior to the commission of the offences in NSW and the ACT.
Prior to his remand at the Alexander Maconochie Centre (AMC), Mr Bryant was incarcerated at Cooma Correctional Centre, NSW. Prior to this incarceration, Mr Bryant resided with his parents in NSW and they confirmed this accommodation is still available to their son on release.
Mr Bryant achieved Year 10 education and completed a boiler making apprenticeship. [He] later obtained a security license and worked in the security industry where he was allegedly assaulted and robbed, he eventually left this employment eight months after. It was during this employment that Mr Bryant advised he committed the current offences and similar offences in NSW. …
Whilst in remand at the AMC, Mr Bryant had completed a Certificate II in Business and enrolled in Certificate II in Information Technology, a Certificate III in General Education and participated in Conservation and Land Management. Mr Bryant had also completed the 1st Steps Anger Management (six session) program.
Mr Bryant reported he is a qualified welder and hopes to obtain employment in this field in Marulan, NSW. The offender’s mother confirmed a full time position is available with a local resident’s welding/fabrication business.
…
Mr Bryant advised following his employment in the security industry he relied on his savings before he commenced gambling to supplement his finances. He advised gambling ultimately became problematic for him and it was a factor in his offending behaviour. Whilst at Cooma Correctional Centre, Mr Bryant completed courses being ‘Am I Gambling Too Much?’ and ‘Best Bets’ in 2007.
…
Mr Bryant reported he had no mental health diagnosis. Service records indicated Mr Bryant had been identified as requiring intervention. During his remand period at the AMC, Mr Bryant had engaged with the Corrections Psychological and Support Service on a fortnightly basis for low moods, distress tolerance, depressive symptoms and assertiveness skills.
While at Cooma Correctional Centre, Mr Bryant is reported to have engaged well with the psychologist for approximately 12 months, which commenced in March 2009.
On 2 August 2013 while in remand, Mr Bryant received a discipline notice for ‘fighting’ and was given a penalty of three days confinement. Generally, Mr Bryant’s behaviour while on remand has been reported by custodial and case management staff as positive and compliant.
20. The Pre-Sentence Report author concluded with this opinion of Mr Bryant:
Mr Bryant is a 32 year old man who appears to have benefited from a stable upbringing and continues to benefit from the support of his parents and community in Marulan, NSW. It is this community that Mr Bryant intends to return to should he be sentenced to community based order.
Mr Bryant would also be supervised on a NSW Parole Order for a period of approximately four years in NSW. It is noted on the NSW Parole Order, Mr Bryant has additional conditions to seek assistance in controlling his gambling; not to engage in any activity, paid or unpaid, involving the control of money or assets of other people and organizations. Further Mr Bryant must not possess a firearm; and if so directed to undergo psychological assessment and counselling.
The offences committed by Mr Bryant are serious and violent in nature and would have impacted on the victims; noting he had committed similar offences in NSW. Mr Bryant appeared to have used his time in the Cooma Correctional Centre to improve his personal circumstances and reflect on his offending behaviour noting his insight into the impact on the victims.
21. The explanation for these offences is not clear. Initially Mr Bryant blamed a gambling habit for his decision to commit robberies, but the psychiatrist who provided a report on Mr Bryant for the defence said that the gambling was not the cause of the offending but a way of laundering the proceeds of the offences. The reasons identified by Dr Knox were a combination of shortage of money after becoming unemployed, possibly Post‑traumatic Stress Disorder following his own experience as the victim of the holdup, generally poor self‑esteem and a specific sense of failure in his relationship with his reportedly demanding father.
Mr Bryant’s troubled relationship with his father was described in more detail in a report prepared by Dr Bruce Westmore, a Forensic Psychiatrist, after examining Mr Bryant in Goulburn Gaol in September 2008. Dr Westmore also recorded childhood and adolescent problems caused for Mr Bryant by the fact that he was somewhat overweight, which meant that he was teased at school and was also unable to share properly in some of his father’s preferred activities.
23. There is no suggestion of problematic alcohol use or of any other substance abuse.
24. I note that Mr Bryant seems to have used his time in custody well so far, having completed a large number of training courses and programs. Dr Knox assessed him as having good prospects of rehabilitation.
25. There is no doubt that offences of this kind require general deterrence. I suspect that Mr Bryant has probably been adequately deterred by the punishment already imposed on him – certainly I do not see any need to increase his sentence in the specific interests of personal deterrence.
Mr Bryant’s guilty pleas came quite late, but still had some utilitarian value given that his trial was listed for two weeks and would have involved a lot of witnesses. There will be a small sentencing discount in recognition of that.
As already noted, totality is a significant issue in Mr Bryant’s sentencing, having regard to the fact that between April 2006 and April 2007 he was engaged in a course of conduct consisting effectively of armed robberies of clubs and fast food restaurants in the NSW southern highlands and the Canberra region. The jurisdictional boundaries that mean he has been sentenced separately for the NSW and ACT offences do not mean that as the second sentence, I need not take account of the NSW offending or the punishment already imposed for it. Indeed, the leading case on totality, Mill v The Queen, relates to just such a set of circumstances.
28. Mr Bryant, please stand. I record convictions on three charges of aggravated robbery, one of attempted aggravated robbery, and one of discharging a sawn‑off shotgun. I also note the scheduled offences of aggravated burglary, theft and aggravated robbery, and I have taken them into account in sentencing you for the November 2006 aggravated robbery. Unlike the NSW sentences, which were imposed after a trial, the sentences I shall impose will reflect a small guilty plea discount of 10% before rounding.
29. I now sentence you to imprisonment as follows:
(a)for the aggravated robbery of the Eastlake Football Club – to seven years and two months imprisonment, reduced from eight years for your guilty plea;
(b)for the attempted aggravated robbery of the Ginninderra Labor Club – to six years and four months imprisonment, reduced from seven years;
(c)for discharging a shotgun in the Ginninderra Labor Club – to three years and seven months imprisonment, reduced from four years;
(d)for the aggravated robbery of the Canberra Raiders Sports Club – to six years and four months imprisonment, reduced from seven years;
(e)for the aggravated robbery of McDonald’s at Emu Bank – to six years and four months imprisonment, reduced from seven years.
The second, third, fourth and fifth sentences will be accumulated on the first sentence to add six months each to the total sentence, giving a total sentence of nine years and two months. The non‑parole period will be four years.
The ACT sentence and the ACT non‑parole period will be backdated to 23 April 2011 to take account of the time you have already spent in custody in the ACT and also to provide a further two years of concurrency with the NSW sentences to recognise the requirements of the totality principle.
32. The effect of that backdating is to give a total sentence for the ACT and NSW offences of 13 years and two months, and a total non‑parole period of eight years. The ACT non‑parole period may seem to be low but, on the other hand, a total non‑parole period of eight years in a total sentence of 13 years and two months is proportionately slightly higher than that imposed in NSW. However, it seems to me that, accepting the totality principle and the need not to impose a crushing sentence, it is still necessary to sentence so that the ACT offences, which certainly had an impact in the ACT, also have a real impact on you.
The effect of the backdating and the non‑parole period is that you will be eligible for parole, at the earliest, in about eight months, namely 22 April next year. By then, by my calculations, you will have finished all but three of the NSW sentences, although all of the ACT sentences will still be running. When you are released under ACT parole, you will still as I understand it be on NSW parole as well, and you will then presumably have an opportunity to go home, and to show your family and the rest of your community that you really have rehabilitated yourself during your time in prison.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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