R v Bryden

Case [2006] SASC 203

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v BRYDEN

[2006] SASC 203

Judgment of The Court of Criminal Appeal

(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice Vanstone)

13 July 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY

Appellant pleaded guilty to threatening harm and two counts of assault with intent to resist lawful apprehension - sentenced in District Court to imprisonment for one year and eight months with non-parole period of ten months - appeal against sentence - whether sentence manifestly excessive - whether appropriate credit given for time spent in custody and on home detention bail both in terms of head sentence and non-parole period - error in approach to allowing for time in custody - sentence found to be manifestly excessive - appeal allowed - sentence set aside - sentence of one year with non-parole period of four months substituted.

Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(n), s 18A, referred to.
R v Malesevic (1999) 204 LSJS 32; Markarian v The Queen (2005) 215 ALR 213; Dinsdale v The Queen (2000) 202 CLR 321; AB v The Queen (1999) 198 CLR 111; Wong v The Queen (2001) 207 CLR 584; Johnson v The Queen (2004) 205 ALR 346; R v Carpentieri (2001) 81 SASR 164; R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Penno (2004) 236 LSJS 457; R v Richards [2006] SASC 60; R v Harris & Simmonds (1992) 59 SASR 300; R v Wall (2000) 209 LSJS 135; R v Powell (2001) 81 SASR 9; R v Place (2002) 81 SASR 395, considered.

R v BRYDEN
[2006] SASC 203

Court of Criminal Appeal:  Perry, Gray and Vanstone JJ

  1. PERRY J.             I agree with the order proposed by Vanstone J and with her reasons.

    GRAY J:

    Introduction

  2. This is an appeal against sentence.

  3. The appellant, Raymond John Bryden, pleaded guilty to one count of threatening harm and two counts of assault with intent to resist lawful apprehension.  Both charges are minor indictable and carry a maximum penalty of imprisonment for five years. 

  4. On 7 April 2006, the appellant was sentenced by a Judge of the District Court to imprisonment for one year and eight months.  The sentencing Judge fixed a non-parole period of ten months, but declined to suspend the sentence.

  5. The appellant had been remanded in custody from 2 October to 20 December 2004 on these matters.  The appellant was released on home detention bail from 20 December 2004 to 25 May 2005.  The appellant was again remanded in custody from 25 May until 15 August 2005 on fresh charges, which were…

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AGLC
R v Bryden [2006] SASC 203
Case
[2006] SASC 203
Decision Date

CaseChat Overview and Summary

The appellant, who pleaded guilty to threatening harm and two counts of assault with intent to resist lawful apprehension, appealed against the sentence imposed by the District Court. The sentence was one year and eight months imprisonment, with a non-parole period of ten months. The central issue in the appeal was whether the sentence was manifestly excessive and whether the appellant should have received credit for the time he spent in custody and on home detention bail in terms of both the head sentence and the non-parole period. The court also needed to determine if there was an error in the approach to allowing for time in custody.

The court found that the appellant's good record from 1999 and the circumstances surrounding the offending, including the temporary strain in his relationship with his partner and the recent overcoming of those problems, warranted a suspension of the sentence. The appellant had already spent over seven months in custody and thirteen months on home detention bail. The court concluded that the sentence was manifestly excessive and that the approach to allowing for time in custody was erroneous. The appeal was allowed, and the sentence was set aside. A sentence of one year with a non-parole period of four months was substituted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J
In my opinion good reasons exists to suspend the sentence of imprisonment. I consider the appellant’s good record from 1999 is a clear indication that he had turned away from a life of crime. It is probable that this change occurred as the result of his relationship with his partner and children. The incident giving rise to the present offending arose out of a temporary strain to that relationship. Those problems have been now recently overcome. The appellant has already spent more than seven months in custody and some thirteen months on home detention bail with respect to this offending. Having regard to all these circumstances, I would suspend the sentence.Conclusion I would sentence the appellant to fifteen months’ imprisonment. I would fix a non-parole period of six months. I would suspend the sentence on the appellant’s entry into a two-year good behaviour bond. VANSTONE J: The appellant appeals by leave against the sentence imposed upon him following his pleas of guilty in the District Court to threatening harm and two counts of assault with intent to resist lawful apprehension. All three offences arose out of an incident on 2 October 2004. Each carries a maximum penalty of five years imprisonment. Exercising his power to impose a single sentence, the sentencing Judge imposed a term of one year and eight months, with a non-parole period of 10 months, to commence upon the day of sentence, being 7 April 2006. The appellant complains that the sentence is manifestly excessive and that it should have been suspended. The offences occurred at a time when the appellant was living with his de facto partner and their two young children at a house at O’Sullivan Beach. Difficulties had developed in the relationship, in part a product of the appellant’s depression, his participation in the methadone program and his partner’s alcoholism. A heated argument developed late one afternoon. It was heard outside by neighbours, one of whom telephoned the police. That person is the victim of the first count, that is, threatening harm. After ringing the police, the victim went to the front of his premises, which were next door to the appellant’s premises. The appellant’s partner walked over to him, with her young daughter. At that point the appellant emerged from the house, called out to the neighbour and threatened to harm him. The appellant walked towards him in an aggressive manner and produced a wooden-handled knife. The neighbour ran off. The appellant pursued him. As he was running away, the appellant threw the knife in the direction of the neighbour. It did not hit him. The chase continued in a nearby reserve, but eventually the appellant gave up and returned to his premises. A few minutes later two police officers arrived. They are respectively the victims of the other two charges, that is, assault with intent to resist arrest. As the police officers approached the house, the appellant emerged from the front door with his young son, threatening the police and shouting obscenities. From the front yard of the house he picked up a metal garden shovel from which the handle had been broken, and ran at the police officers with it raised above his head.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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