R v John Paul Bryant

[2001] NSWCCA 81

CITATION:	R v John Paul Bryant [2001] NSWCCA 81
FILE NUMBER(S):	CCA 60748/00
HEARING DATE(S):	9 March 2001
JUDGMENT DATE:	9 March 2001
PARTIES :	Regina John Paul Bryant
JUDGMENT OF:	Sperling J at 1; Spigelman CJ at 16, 18; Carruthers AJ at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/51/0103
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	P M Strickland for the Applicant M C Marien for the Crown
SOLICITORS:	D J Humphreys for the Applicant S E O'Connor for the Director of Public Prosecutions
CATCHWORDS:	Criminal Law - sentence excessive - appeal against sentence allowed - no question of principle
DECISION:	Leave to appeal granted. Sentence quashed and a sentence of a fixed term of six months' imprisonment substituted, commencing 6 August 2000 and expiring 28 February 2001.

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IN THE COURT OF

CRIMINAL APPEAL

60748/00

SPIGELMAN CJ

SPERLING J

CARRUTHERS AJ

Friday 9 March 2001

Regina v John Paul Bryant

JUDGMENT

1    SPERLING J: Prior to 4 February 1999, the appellant’s criminal history included convictions for property offences, drug offences, assault and driving offences. As at February 1999, he was 36 years of age and had received four prison sentences varying from one month to one year of actual imprisonment. One would have hoped that, at his age and with his experience of gaol, the applicant would have learnt his lesson by then, but that was not the case.

2    It seems that the applicant has been addicted to alcohol and drugs, including heroin for a long time. This is a personal tragedy, a life that is just being wasted. But, sympathetic as one may be, society cannot stand by and watch such an individual abuse the rights of other people.

3    On 4 February 1999, the applicant attacked another man over money, allegedly owed by the victim to the applicant’s friends. He was indicted on one count of assault occasioning actual bodily harm to which he pleaded guilty. He had initially been charged with a more serious offence but the Crown did not proceed with that. Whether the Crown was in a position to prove the more serious offences is unknown. I mention the circumstance only in order to make clear that the sentencing hearing proceeded on the facts put before the sentencing judge in support of the offence for which the appellant was indicted and only on those facts. That applies also to this application for leave to appeal.

4    It was on 14 December 1999 that the applicant came before the District Court at Coffs Harbour for sentence. The agreed facts put before the Court were as follows:

“At about 3pm on 4 February 1999 the victim, Trevor Fitzpatrick, (31 years of age) went to a house at 98 Park Beach Road, Coffs Harbour. In the house were the accused and two other persons.
The accused pushed the victim onto a lounge and an argument erupted over the accused’s claim that the victim owed money to friends of the accused.
The accused elbowed the victim to the left eye, grabbed him in a headlock and dragged him down the hallway into a bedroom. He pushed the victim on to the bed. The argument over the money allegedly owed by the victim continued. The accused punched the victim to the mouth with his fist.
When the accused left the room briefly the victim left the house through the bedroom window. He ran into a nearby coffee shop and asked the proprietor to call the police.
The accused was arrested later that day. He entered into an interview wherein he claimed that the altercation between himself and the victim had remained at a verbal level.
The victim was examined the same day by Dr Barry Cross. He had superficial lacerations on his left lower lip, left upper eyebrow and the bridge of his nose. Police took photographs of the victim’s injuries.”

5    The sentencing judge deferred passing sentence. He imposed a recognisance to be of good behaviour for five years and to come up for sentence if called upon for breach. The conditions included that the applicant was to subject himself to the supervision of the Parole and Probation Service and was to obey their directions. The judge warned the applicant that if he breached the recognisance he would go to gaol.

6    The applicant did breach his recognisance. About one month after the sentence, on 17 January 2000, the applicant stole 12 vinyl records from an acquaintance and sold them to a second-hand dealer for $12. On 25 February 2000, the applicant was convicted for that offence at Coffs Harbour Local Court and also for obtaining money by deception. In relation to that episode he was fined. There was further breach of the recognisance by failing to attend at the probation service on two occasions and attending late on two further occasions.

7    The applicant received notice requiring him to present himself at Coffs Harbour District Court for sentence. He was to attend on 14 August 2000. He failed to do so. A bench warrant was issued. He presented himself on 29 August 2000. He was taken into custody on that occasion. Bail was refused on 31 August 2000. He has been in custody since 29 August.

8    On 6 November 2000, the applicant was sentenced for the offence of assault occasioning actual bodily harm committed on 4 February 1999. The sentencing judge reviewed the history of the proceedings relating to that offence, including the deferral of sentence, the recognisance, the subsequent offence constituting breach, and the applicant being called up for sentence.

9    In his remarks on sentence, the judge said:

“I take into account the need for general deterrence and particularly deterrence for Mr Bryant. I take into account the fact that he has a relationship with Kerry who is in business; that he has two children, one who is aged nine of Kerry and another, his child by an earlier union, aged fifteen. I take into account that he has been on a disability pension. I take into account that he has been in custody since 14 August when he did not appear in respect of this breach report and a bench warrant issued and he was arrested and he has been in custody since his arrest on 14 August.
The record of Mr Bryant goes back to the Moruya Children’s Court in Bodella in 1978. Since then there have been various offences of dishonesty and alcohol matters and drug matters and matters of assault and robbery in 1985 in Canberra, assault female at Bega Local Court in 1987. And I take into account as I did before that Mr Bryant has spent time in gaol. Again referring to my remarks on sentence, I noted at that time he was in gaol for false pretences in 1984 and in respect of serious assaults in 1989. He was given eighteen months hard labour, twelve months non-parole period in that. And I take into account the background including his schooling; that he has been involved in work. But I particularly note that he has been given a chance on more than one occasion particularly by me and I take into account also that the maximum penalty for this offence is five years imprisonment.”

10    As I have mentioned, the applicant had, in fact, been in custody since 29 August, not 14 August.

11    His Honour went on to say that a period of imprisonment was appropriate. He sentenced the applicant to imprisonment for a period of two years commencing on 14 August 2000 with a non-parole period of one year expiring on 13 August 2001. The error in the date favoured the applicant.

12    There was no finding of special circumstances to justify a non-parole period shorter than would have accorded with the statutory formula. The appellant can have no complaint about that.

13    The appellant has now been in custody for something over six months. Notwithstanding the applicant’s poor criminal history, the sentence was, in my view, unreasonably excessive, having regard to the objective features of the crime on the agreed facts.

14    I have taken into account the plea of guilty for its utilitarian value only, there being no reason to believe that there was any prospect of successfully defending the matter. It is unnecessary to specify the quantification of the discount I have allowed, in the special circumstances of the present case.

15    I would grant leave to appeal, quash the sentence and substitute a sentence of a fixed term of imprisonment of six months commencing on 29 August 2000 and expiring on 28 February 2001. The effect of such an order would be that the applicant is entitled to be released from custody immediately.

16    SPIGELMAN CJ: I agree.

17    CARRUTHERS AJ: I also agree.

18    SPIGELMAN CJ: The orders are as indicated by Sperling J.

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