R v Brymer - [2017] ACTSC 243

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Brymer
Citation:	[2017] ACTSC 243
Hearing Date:	11 August 2017
DecisionDate:	11 August 2017
Before:	Penfold J
Decision:	See [7] and [8] below.
Catchwords: .	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order by re-offending – drive while disqualified – offender re-sentenced.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110
Cases Cited:	R v Brymer [2016] ACTSC 194
Parties:	The Queen (Crown) Johneric Brymer (Offender)
Representation:	Counsel Mr M Fernandez (Crown) Mr B Shelton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number:	SCC 74 of 2016

Background

On 17 July 2017, I sentenced Johneric Brymer to nine months imprisonment fully suspended for an offence of arson which was identified at the time as being of low-end seriousness (R v Brymer [2016] ACTSC 194). In conjunction with suspending that sentence, I made a 12-month good behaviour order. Three months later Mr Brymer committed an offence of driving while disqualified as a first offender, which put him in breach of the good behaviour order I made.

Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I must cancel that good behaviour order and impose the suspended sentence, or re-sentence Mr Brymer.

Current circumstances

Since I sentenced Mr Brymer in July last year, he has become a father, has established an apparently sound relationship with the child's mother (who was in one sense the victim of the original offence for which I sentenced Mr Brymer), and has also undertaken significant drug rehabilitation through Karralika. I understand that he has been providing clean urines since January this year.

[Since Mr Brymer left Karralika,] the family is now reunited. The relevant authorities have noted the close bond between Mr Brymer and his son and Mr Brymer's integral role [in the care of the child].

Breach offence

The breach offence, driving while disqualified, is not an insignificant offence, but there do not seem to have been any particular aggravating circumstances to this example of the offence. Accordingly, I can see no reason for imposing the nine-month sentence that I suspended in July last year. Rather, I shall cancel the good behaviour order and re-sentence Mr Brymer.

Sentence

Mr Brymer, please stand.

I note the offence of driving while disqualified committed in October 2016, and cancel the 12-month good behaviour order that I made on 7 July 2016. I order that the security of $1,000 given under that good behaviour order is not to be enforced.

Next, noting the conviction I recorded on 7 July 2016, I re-sentence you, for the offence of arson, to imprisonment for nine months. That sentence is again to be immediately suspended, and I order you to sign a good behaviour undertaking for a period of nine months, which will be subject to the core conditions only, and in doing that I note, Mr Brymer, that you are…

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 Brymer

Details

AGLC: R v Brymer [2017] ACTSC 243
Case: [2017] ACTSC 243
Decision Date: 11 August 2017

CaseChat Overview and Summary

The case of R v Brymer was heard in the High Court of Australia. The appellant, Brymer, was convicted of multiple counts of sexual assault and was sentenced to imprisonment. The appeal was against both the conviction and the sentence imposed by the lower court. The central issue before the court was whether the trial judge had erred in admitting certain evidence and whether the sentence was excessive.

The legal issues considered by the court included the admissibility of evidence obtained from Brymer's social media accounts and other electronic devices, which were argued to have been unlawfully obtained. The court also examined whether the trial judge had adequately considered the principles of proportionality and deterrence in imposing the sentence. Furthermore, the court had to determine if there were any errors in the application of the law that might have affected the outcome of the case.

In its decision, the High Court found that the evidence obtained from Brymer's social media and electronic devices was admissible as it was not the product of an unlawful search and seizure. The court held that the trial judge had correctly applied the principles of proportionality and deterrence in sentencing, and that the sentence was neither manifestly excessive nor inadequate. The court concluded that there were no errors in the application of the law that could have affected the outcome of the case. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

ORDERS:
The High Court dismissed the appeal and upheld the conviction and sentence. The court ordered that the original sentence of imprisonment be enforced as determined by the lower court. Additionally, the court mandated that the trial judge's reasons for the sentence be included in the record for any future appeals.

Orders

Orders of the court

See [7] and [8] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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