R v Bryzak

[1996] QCA 385

COURT OF APPEAL
MOYNIHAN J
MACKENZIE J

CULLINANE J

CA No 321 of 1996
THE QUEEN
v.

DARREN GLEN BRYZAKApplicant

BRISBANE
..DATE 02/10/96
021096 T7/RB M/T COA240/96
CULLINANE J: The applicant pleaded guilty to two offences of
housebreaking, two of stealing, five of false pretences and one
of unlawful using a motor vehicle. He was sentenced to three
and a half years imprisonment in respect to the two
housebreaking offences, 18 months in respect of the stealing
offences, six months imprisonment in respect of the false
pretences and unlawful using offences, all of which were to be
served concurrently.

The false pretences offences involved the pawning of various items of property, in most instances property obtained in the course of the housebreaking and stealing offences that he pleaded guilty to and the unlawful using a motor vehicle offence arose out of one of the false pretences offences when the registration number and car description was obtained and the vehicle was subsequently found to have been stolen.

The primary complaint is that the sentencing Judge, when making a recommendation as to the applicant's eligibility for parole failed to sufficiently allow for certain factors to be taken into account on his behalf. The first of these, of course, were his pleas of guilty and also certain assistance that he provided to the police and which is dealt with in Exhibit 4, the contents of which have been read by the Court. As well some assistance was provided in relation to co-offenders involved in the commission of some of the offences which are the subject of this appeal.

The applicant has a prodigious criminal history commencing from when he was a child. He has many convictions for offences of 021096 T7/RB M/T COA240/96

the kind that he was sentenced in respect of and in respect of which he has appealed. He was on probation at the time all of these offences were committed. As I have said there is no substantial dispute as to the head sentences imposed.

The recommendation which the sentencing Judge made was that the applicant be eligible to be released after serving a period of 18 months. He would, in the ordinary course of events, have been eligible for release after a period of 21 months.

Whilst it is the case that any variation of the sentence imposed in this regard would involve relatively little alteration in the sentence imposed, in my view I think it is correct to conclude in the particular circumstances of this case that not sufficient weight has been given to the factors that I have referred to.

I would grant the application, allow the appeal and vary the recommendation so that the applicant would be eligible to be released after serving a period of 12 months.

MOYNIHAN J: I agree that this is a sufficiently exceptional case to justify what might otherwise seem to be a fairly minor intervention. I agree with the order proposed.

MACKENZIE J: I agree with the remarks of both of my brothers.

MOYNIHAN J: The order will be as Justice Cullinane has indicated.

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CaseChat Overview and Summary

The Court of Appeal, comprising Moynihan J, MacKenzie J and Cullinane J, considered an appeal by Darren Glen Bryzak against his sentence. The applicant had pleaded guilty to a series of offences, including housebreaking, stealing, false pretences and unlawful use of a motor vehicle, and was sentenced to concurrent terms of imprisonment. The applicant's primary contention was that the sentencing judge had not adequately taken into account certain factors in making a recommendation for parole eligibility. These factors included the applicant's guilty pleas, his assistance to the police, and assistance provided in relation to co-offenders. The applicant also had a lengthy criminal history and was on probation at the time of the offences.

The court was required to determine whether the sentencing judge had given sufficient consideration to the factors mentioned by the applicant in making the parole eligibility recommendation. Specifically, the court had to decide if the recommendation was appropriate given the mitigating circumstances presented, which included the applicant's guilty pleas and his cooperation with authorities. The court also had to assess whether the original recommendation for parole eligibility after 18 months was just, in light of the potential for a shorter period of 12 months.

In its reasoning, the Court of Appeal found that the sentencing judge had not adequately weighed the mitigating factors in making the parole eligibility recommendation. Justice Cullinane, who delivered the lead judgment, noted that while the variation in the parole eligibility period was relatively minor, it was appropriate in the circumstances to adjust the recommendation. The court agreed that the applicant's guilty pleas, his assistance to the police and in relation to co-offenders, warranted a more lenient parole eligibility period. As a result, the court decided to allow the appeal and vary the recommendation so that the applicant would be eligible for release after serving 12 months.

The unanimous decision of the Court of Appeal was to grant the applicant's appeal and vary the parole eligibility recommendation. The court concluded that the original recommendation did not sufficiently account for the mitigating factors and that a shorter parole eligibility period was justified. The order of the court was that the applicant would be eligible for release after serving a period of 12 months.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established