Regina v Brandon Thomas Abbott

[2002] NSWCCA 389

CITATION:	Regina v Brandon Thomas Abbott [2002] NSWCCA 389
FILE NUMBER(S):	CCA 60378/2002
HEARING DATE(S):	25/09/2002
JUDGMENT DATE:	25 September 2002
PARTIES :	Regina Brandon Thomas Abbott
JUDGMENT OF:	Buddin J at 1; Smart AJ at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/51/0107
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	R Hulme (Crown) P Hamill (Applicant)
SOLICITORS:	SE O'Connor (Crown) DJ Humphreys (Applicant)
CATCHWORDS:	Appeal against sentence - assault police and malicious damage - appeal against head sentence only - strong subjective case - sentence held to be manifestly excessive - leave granted to withdraw Notice of Abandonment of Appeal - various conditions of parole removed.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Regulation 2000 Criminal Appeal Act 1912 Criminal Appeal Rules
CASES CITED:	Cameron v The Queen (2002) 187 ALR 65 Pearce v The Queen (1998) 194 CLR 620 R v Cartwright (1989) 17 NSWLR 243 R v Doan (2000) 50 NSWLR 115 R v Thomson & Houlton (2000) 49 NSWLR 383 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Young [1999] NSWCCA 275
DECISION:	Grant leave to withdraw Notice of Abandonment of Appeal. Grant the application for an extension of time. Grant leave to appeal. Allow the appeals against sentence. Quash the sentences imposed in the District Court. In lieu thereof in respect of count 2 the applicant is sentenced to imprisonment for eighteen months with a non-parole period of six months. The sentence is to commence on 30 November 2001 and to expire on 29 May 2003. The non-parole period is to commence on 30 November 2001 and to expire on 29 May 2002. In respect of count 3 the applicant is sentenced to imprisonment for nine months with a non-parole period of three months. The sentence is to commence on 30 November 2001 and to expire on 29 August 2002. The non-parole period is to commence on 30 November 2001 and to expire on 27 February 2002. Delete from the conditions of parole imposed in the District Court conditions 1 and 3 but otherwise confirm the remainder of those conditions.

60378/02

BUDDIN J
SMART AJ

Wednesday 25 September 2002

REGINA v BRANDON THOMAS ABBOTT

Judgment

1 BUDDIN J: The applicant was sentenced in the District Court on 30 November 2001 to two concurrent terms of three years’ imprisonment with an associated non-parole period of six months. Each of the sentences was ordered to commence on that date. The sentences themselves expire on 29 November 2004 whilst the non-parole period has already been served it having expired on 29 May 2002.

2 The sentences were imposed in consequence of the applicant’s plea of guilty to one count of assaulting a police officer whilst in the execution of his duty which carries a maximum penalty of 5 years’ imprisonment and one count of maliciously damaging property which attracts the same maximum penalty. These pleas of guilty were accepted by the Crown in full satisfaction of an indictment which originally contained three counts.

3 In those circumstances the sentencing judge found that the applicant had pleaded guilty at the first reasonable opportunity available to him. See Cameron v The Queen (2002) 187 ALR 65. His Honour accordingly reduced the sentence which was otherwise thought to be appropriate by 20%. See R v Thomson & Houlton (2000) 49 NSWLR 383. Three further offences of assault police were taken into account on a Form 1. These offences occurred during the course of the incident which gave rise to the counts on the indictment.

4 The facts which are not in dispute may be briefly stated. At about 1.30 am on Saturday 2 June 2001, the applicant went to an address in Nambucca Heads. He had been staying there following the break-up of a relationship. He told the occupants that he had been in a fight and it appeared to them that he was well affected by alcohol. An argument developed between the applicant and another visitor at the premises. That argument escalated into a fight during the course of which the applicant went to the kitchen and obtained a number of knives. He then took them and sat outside on the verandah.

5 At some time shortly after 5 am police arrived at the premises in response to a call from one of the occupants. They spoke with the applicant on the verandah. However when several officers approached the applicant he produced a steak knife from behind his back and pointed it at one of them. The applicant then picked up a house brick and said, “I’m not fucking going with you. If you don’t fuck off I’ll use this fucking thing” (which was a reference to the knife). He approached one of the officers who backed away. The officers attempted to placate the applicant who then proceeded to damage the exterior walls of the premises (which were made of fibro) and to smash two windows. He also threw a knife and a brick at police. He eventually surrendered to police and was arrested.

6 The applicant has filed a notice for an extension of time within which to apply for leave to appeal against the sentences which were imposed upon him. It is necessary for him to do so because he had earlier filed a Notice of Abandonment of his application for leave to appeal. As to the effect of that decision, see Rule 27 of the Criminal Appeal Rules. He has now filed an affidavit in which he seeks to explain the reason why he adopted that course. It would appear that the decision was prompted by information provided to him by prison authorities about administrative arrangements within the prison system and that it was made without the benefit of legal advice. The Crown does not, in the circumstances, oppose leave being granted.

7 Section 10(3) of the Criminal Appeal Act 1912 gives the Court a discretion to extend the time within which to file a notice of an application for leave to appeal. Even though the section confers an unfettered discretion upon the Court to extend the time it will not be granted as a matter of course. A critical question which frequently arises for consideration in cases such as this is whether or not there may have been a miscarriage of justice. See R v Cartwright (1989) 17 NSWLR 243 at 246; R v Young [1999] NSWCCA 275.

8 As has been observed the applicant’s non-parole period has already expired. In those circumstances it is hardly surprising that there has been no challenge to it. However the effect of the sentencing judge’s order is that the applicant will be on parole for a period of two and a half years. In those circumstances there is a challenge both to the length of the overall sentences and to the conditions upon which the applicant was released to parole.

9 Those conditions are set out below:

1 To appear before a Court if called upon to do so at anytime.
2 To be of good behaviour.
3 To advise the Clerk, of the Court of any change in residential address.
4 To accept the supervision of the New South Wales Parole Service, particularly at Coffs Harbour, throughout the period of the parole and to obey all reasonable directions of the officers of that service.
5 To report to the officer (or any other person nominated by the officers) at such times and places as the officer may from time to time direct.
6 To be available for interviews at such times and places as the officer or officer may, from time to time, direct.
7 To reside at an address agreed upon by the officer at such times as the officer considers necessary.
8 Not to travel outside the boundaries of New South Wales without the express approval of the officer’s District Manager.
9 Not to leave Australia without the permission of the Parole Service.
10 To enter employment, arranged or agreed upon by the officer, or make himself available for employment as instructed by the officer.
11 To notify the officer of any intention to change his employment, if practicable before the change occurs or otherwise at his next interview with the officer.
12 Not to associate with any person or persons specified by the officer, not to frequent or visit any place or district designated by the officer – I note an offender’s New South Wales Probation Service Officer may, with the concurrence of the officer’s District Manager, direct that the conditions of the offender’s parole order, in relation to supervision are suspended.
Further conditions are:
13 That he is to remain under the supervision of the Mental Health Term.
14 He is to attend such programmes or counselling as the New South Wales Probation Service require, including for anger management and continued residence at Bennelong Haven and to take such medication as he is prescribed.

10 The applicant was aged 28 years at the time of the offences. He has a criminal history. Of particular relevance is the fact that it includes a number of convictions for offences of violence, some of which have included assaults upon police officers. He has been imprisoned for such offences in the past, albeit only for short periods. See generally Veen (No 2) v The Queen (1988) 164 CLR 465 at 477. He also has previous convictions for causing damage to property.

11 It is a matter of aggravation that at the time of the commission of these offences he was on bail for similar offences and also upon a recognisance in relation to yet a further offence of assault occasioning actual bodily harm. Serious as these offences undoubtedly were, particularly in light of the matters to which I have just referred, it must nevertheless be observed that no police officer was struck or physically injured in any way. Nor was there any need to physically restrain the applicant. It is also pertinent to observe that both offences were capable of being disposed of in the Local Court. See R v Doan (2000) 50 NSWLR 115. Presumably they would have been had there not been the other count in the indictment which ultimately did not proceed. It is common ground that the applicant had been in continuous custody for about six months prior to the imposition of the present sentence, one month of which was solely referable to the present matter. In all those circumstances, it was, and is, necessary to have regard to the question of totality and to the principles enunciated in Pearce v The Queen (1998) 194 CLR 620.

12 The applicant presented a powerful subjective case before the sentencing judge. It included:

(a) his early pleas of guilty;

(b) a well-documented and extensive history of mental illness in respect of which he had been hospitalised on a number of occasions (this history was outlined in the report of a forensic psychiatrist, Dr O’Dea for the Corrections Health Service and a further report from a registered nurse with the Community Mental Health Services);

(c) the fact that shortly before the commission of these offences the applicant had attempted to hang himself (there having been a history of suicide attempts) and was suffering from depression for which he was receiving medication in the week immediately before the incident which gave rise to the present offences;

(d) the fact that he had had a dysfunctional childhood which had featured both sexual abuse from a family friend who had been imprisoned as a result and physical abuse from his step-father with whom he had at one stage lived;

(e) the fact that he had acquired few literary skills having left school at an early age;

(f) the fact that he had lived an itinerant lifestyle in which he had divided his time between living on the streets and in refuges and during which time he had consumed to excess, tablets designed for car sickness and lighter fluids; and

(g) the fact that he was intoxicated at the time of the offences, a factor which was to be considered in the overall context of his deprived background and aboriginality.

It was a combination of some of these features which prompted the sentencing judge to make a finding of “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

13 It was quite clear that custodial sentences were called for in order to denounce the applicant’s behaviour and to provide protection for the community from this type of conduct especially when it is directed at police officers who are simply discharging the functions which the law confers upon them.

14 Nevertheless the applicant has, in my view, made good his submission that the sentences which were imposed were manifestly excessive. The Crown candidly acknowledged that the sentences were very severe. In all the circumstances it is my view that sentences of less severity than those which were in fact imposed are warranted in law. See Criminal Appeal Act 1912 s 6(3). That being so I would be disposed to grant the application for an extension of time.

15 As I said earlier, complaint is also made about some of the conditions attached to the parole order. The Crown concedes that both conditions 1 and 3 are inappropriate because the court simply had no power to impose them. It is regrettable that this was not pointed out to the sentencing judge at the time.

16 It is also submitted that the sentencing judge had no power to impose Condition 14 because it contains a condition of residence, and the consent of the relevant person in respect of that condition had not been obtained, as is required by Regulation 6(2) of the Crimes (Sentencing Procedure) Regulation 2000. That provision is in the following terms:

(1) Before a court makes a parole order containing terms or conditions relating to residence or treatment, the court:
(a) must consider a report from a probation and parole officer as to the offender’s circumstances, and
(b) must satisfy itself, having regard to the probation and parole officer’s report, that it is feasible to secure compliance with the terms or conditions.
(2) Before a court makes a parole order containing terms or conditions requiring the co-operation of a person other than the offender or a probation and parole officer, it must obtain the consent of the person to the specification of those terms and conditions in so far as they require the person’s co operation.

17 In my view there has been no failure to comply with the regulation. The condition obliges the applicant to “attend such programmes or counselling as the New South Wales Probation Service require” which includes a number of examples, one of which is residence at Bennelong Haven. As the condition makes plain, the decision in relation to these matters is entirely one for the Probation Service to exercise and is contingent upon the exercise by them of that discretion. In any event, as the evidence made plain, the applicant had previously resided in that facility and there was no suggestion that the consent of the relevant person had then, or at any other time, not been forthcoming.

18 Having had regard to the various sentencing considerations which are relevant and having had regard to s 21A of the Crimes (Sentencing Procedure) Act 1999, I would propose the following orders.

1 Grant leave to withdraw Notice of Abandonment of Appeal.

2 Grant the application for an extension of time.

3 Grant leave to appeal.

4 Allow the appeals against sentence.

5 Quash the sentences imposed in the District Court. In lieu thereof in respect of count 2 the applicant is sentenced to imprisonment for eighteen months with a non-parole period of six months. The sentence is to commence on 30 November 2001 and to expire on 29 May 2003. The non-parole period is to commence on 30 November 2001 and to expire on 29 May 2002. In respect of count 3 the applicant is sentenced to imprisonment for nine months with a non-parole period of three months. The sentence is to commence on 30 November 2001 and to expire on 29 August 2002. The non-parole period is to commence on 30 November 2001 and to expire on 27 February 2002.

6 Delete from the conditions of parole imposed in the District Court conditions 1 and 3 but otherwise confirm the remainder of those conditions.

19 SMART AJ: I agree.

20 BUDDIN J: The orders will be as I have proposed.

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