R v Bryant [2003] NSWCCA 34

New South Wales Court of Criminal Appeal

CITATION : R v Bryant [2003] NSWCCA 34 HEARING DATE(S) : 21/02/03 JUDGMENT DATE : 21 February 2003

JUDGMENT OF : James J at 1; Greg James J at 20 DECISION : Leave to appeal granted - Appeal dismissed

PARTIES : Regina v Matthew John BRYANT FILE NUMBER(S) : CCA 60497/02 COUNSEL : CB Craigie SC - Applicant CD Frearson - Crown SOLICITORS : DJ Humphreys - Applicant SE O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0166 FILE NUMBER(S) : LOWER COURT Keleman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060497/02

JAMES J GREG JAMES J

FRIDAY 21 FEBRUARY 2003 REGINA v MATTHEW JOHN BRYANT Judgment

1 JAMES J: The Court is in a position to give judgment. Matthew John Bryant has applied for leave to appeal against a sentence imposed on him in the District Court on 26 April 2002 by his Honour Judge Keleman, after he had pleaded guilty to a charge of assault with intent to rob whilst armed with an offensive weapon, namely a knife. Assault with intent to rob whilst armed with an offensive weapon is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. Judge Keleman sentenced the applicant to a term of imprisonment for 5 years commencing on 21 October 2001, the date on which the offence was committed and the applicant was arrested and taken into custody, with a non-parole period of 3 years. 2 In his remarks on sentence his Honour summarised the objective facts of the offence in a way which has not been the subject of any criticism on the hearing of this application. "Early on the morning of Sunday 21 October 2001, the prisoner obtained from his home a knife, which had a ten centimetre blade, and walked directly to the Kirrawee Bakery in Oak Road Kirrawee. The prisoner entered the bakery and told the owner of the bakery that he wanted to look around. He then left the bakery about seven minutes later and appeared to be looking in nearby shops. The prisoner returned to the bakery moments later and placed a plastic bag on the service counter which separated the prisoner from the shop owner. The prisoner then took the knife from a pocket in his pants and said, 'can you fill the bag, I am very hungry'. The shop owner moved back from the counter and looked for something to use for protection. The prisoner then turned and ran from the bakery. He was pursued for a short distance by the shop owner and was seen running south towards President Avenue Kirrawee. Shortly after, at 8am, the prisoner was spoken to by police outside his residence in President Avenue. The prisoner matched the description that had been provided to police over the police radio. He was subsequently searched and a black handled knife was found secreted in his sock and he was arrested and conveyed to Sutherland Police Station. At the time of his arrest he stated to police that he did not hurt anyone but was hungry and desperate for food. The prisoner participated in an electronically recorded interview with police during which he made full admissions to attending the bakery and producing the knife. The prisoner stated that he committed the offence in order to obtain food. I am satisfied beyond reasonable doubt having regard to the totality of the evidence that in placing the bag on the counter and presenting the knife to the shopkeeper the prisoner was intending to obtain money from the shop owner in order to obtain food". 3 In his remarks on sentence his Honour referred to the criminal history of the applicant. On 15 December 1998 the applicant had been sentenced in the District Court for an offence of stealing from the person to a fixed term of imprisonment of 6 months, for an offence of armed robbery to a sentence of imprisonment for 3 years with a minimum term of 1 year and for an offence of robbery to a fixed term of imprisonment of 9 months. All the sentences were directed to be served concurrently, commencing on 27 July 1998. The additional term for the sentence of armed robbery expired on 26 July 2001, that is about 3 months before the applicant committed the present offence. 4 In his remarks on sentence his Honour dealt with the subjective circumstances of the applicant. His Honour's statement of the subjective circumstances of the applicant was taken from a pre-sentence report, a psychologist's report and from evidence given by the applicant in the proceedings on sentence. 5 The applicant was born in Wales in December 1977. His father died suddenly, when the applicant was 13 years old. His father's death had a profound effect on the applicant. The applicant completed his schooling in Wales and was employed for a time in Wales. 6 The applicant, his mother and brother migrated to Australia when the applicant was 17 years old. His mother's brother was already living in Australia and has continued to be supportive of the applicant. In Australia the applicant began some apprenticeships but in each case lost his employment. Reasons for losing his employment included returning late from holidays, not turning up for work and appearing to be effected by drugs. 7 The applicant has a long history of addiction to drugs. He began drinking alcohol at the age of 13, he began using cannabis at the age of 14 and he subsequently used other drugs. After he was released from custody, after serving the minimum term of the sentence for armed robbery, the applicant attended a drug rehabilitation program at the William Booth Institute for a period of 10 months between July 1999 and May 2000. For 8 months after completing that program the applicant did not use any drugs. However, he was then offered heroin by a friend and within a week he was using heroin intravenously. In August 2001 the applicant commenced a methadone program and succeeded in largely stopping the use of heroin. After commencing the methadone program the applicant also took Valium and Serapax on a daily basis, at least partly to assist him in coping with anxiety he experienced. 8 The night before the applicant committed the present offence and on the morning of the day on which he committed the offence he took a large number of Valium tablets. He took these Valium tablets to overcome the effects of withdrawal from methadone, which he had not taken for some days. Because he was in employment he had not been able to visit the methadone clinic at a time at which it was open. His Honour accepted that the applicant had taken Valium in the quantities he asserted shortly before committing the offence but found that the applicant in committing the offence had full knowledge of what he was doing and of the gravity of his actions. While in custody awaiting being sentenced for the present offence the applicant became drug free. His Honour noted in his remarks on sentence that the applicant plans after he is released from custody to attend Narcotics Anonymous meetings and to re-enter the William Booth program. 9 The applicant is of average intelligence and is intellectually capable of acquiring skills and knowledge that would enable him to consider a range of employment options. However, his Honour found he has a personality profile such that he is liable to depression, anxiety and being socially isolated. The psychologist in his report said that psychological counselling would assist the applicant in addressing his personal loss due to the death of his father and the later death of his grandmother, with whom he had had a close relationship. His Honour noted that the applicant had the continuing support of his mother, brother and uncle. His Honour found that the applicant's prospects of rehabilitation were reasonable. 10 Towards the end of his remarks on sentence his Honour explained some of the factors which had led him to decide that the sentence he would impose was appropriate. An offence of the kind committed by the applicant involving the use of a knife was objectively serious. Persons such as shopkeepers who are vulnerable to armed robberies are to be protected by the imposition of condign sentences. The criminal history of the applicant including convictions for previous offences of the same kind was relevant to the sentencing of the applicant. His Honour found that the plea of guilty had been entered at the earliest available opportunity and allowed a total discount of about 25 per cent for the plea of guilty, including an element for the applicant's contrition. His Honour referred to the guideline judgment for offences of armed robbery R v Henry (1999) 46 NSWLR 346, as qualified in R v Thompson (2000) 49 NSWLR 383 para 161. His Honour found that there were special circumstances within s 44 (2) of the Crimes (Sentencing Procedure) Act, in that the applicant would benefit from an extended period of supervision to assist him in overcoming his drug and other problems and to maintain strategies which would ensure his rehabilitation generally. 11 On the hearing of this application it was submitted by counsel for the applicant that the sentencing judge had assessed the objective gravity of the offence committed by the applicant at too high a level. It was submitted that in the period leading up to the commission of the offence the applicant had been subject to severe stress. As a result of a decision made by their mother the applicant and his brother had left the family home and had been living together in a unit. By the time the offence was committed the household of the applicant and his brother was in serious financial difficulty. Reliance was placed in written submissions on a passage in the pre-sentence report in which the author of the report said:- "It is the opinion of the offender's mother that he has difficulty in coping with the stress of independent living, picking up his methadone from clinics that are basically run for people who are unemployed." 12 When he was interviewed by police the applicant told the police that, because he was working, it was difficult for him to attend a clinic to pick up methadone at a time at which it was available at the clinic. Because he had not been able to obtain methadone, he had, shortly before committing the offence, taken the large quantities of Valium. 13 It was submitted on behalf of the applicant that the motive for the offence as found by his Honour was not to obtain money to support a drug habit but a motive of a more unusual and less culpable kind, to obtain money with which to buy food. 14 It was further submitted that the sentencing judge had given insufficient weight to the applicant's favourable subjective circumstances and in particular his successful completion between July 1999 and May 2000 of the 10 month rehabilitation program at the William Booth Institute. It was submitted that his successful completion of this programme was relevant to assessing the applicant's culpability in committing the offence and also as demonstrating a capacity of the applicant for rehabilitation. In summary, it was submitted by counsel for the applicant that the sentence imposed on the applicant by the sentencing judge was manifestly excessive. 15 This Court is, of course, the Court of Criminal Appeal and not an original sentencing Court. After taking into account the submissions made on the applicant's behalf I have been unable to conclude that the sentence imposed by his Honour exceeded the upper limit of a proper exercise of his Honour's sentencing discretion. His Honour appears to me to have expressly taken into account all of the matters sought to be relied on by counsel for the applicant. His Honour was sentencing the applicant for the serious offence of assault with intent to rob whilst being armed with an offensive weapon, being a knife. 16 Although the applicant did not succeed in actually stealing anything and the guideline judgment in Henry was not directly applicable, the judgment in Henry could properly be regarded by his Honour as affording some guidance. His Honour was mindful of the qualification to the guideline judgment in the later decision of Thompson. The offence committed by the applicant had five of the seven characteristics of the category of case which the Chief Justice said in Henry should generally attract a sentence of between 4 to 5 years for the full term. The offence did not satisfy characteristic (vi), a small amount taken, as nothing was taken. However, as to characteristic (i), no or little criminal history, the applicant had a recent criminal history of offences of the same kind. 17 His Honour made a careful finding of as to what the applicant's motive for committing the crime was, and could properly take the view that the motive asserted by the applicant did not materially diminish his criminality. Many criminal offences are committed by offenders who consider themselves, often quite reasonably, as being in serious need of money. 18 His Honour's finding that the applicant had only reasonable prospects of rehabilitation was a finding that was open to his Honour. As his Honour pointed out in his remarks on sentence, although the applicant had completed the 10 month program at the William Booth Institute and had remained drug free for some months after completing that program, he had subsequently lapsed and had quickly become an intravenous heroin user. 19 As I have said, I have formed the conclusion that this Court as a Court of error could not find that the sentence imposed by his Honour exceeded the upper limit of the range of sentences open to a proper exercise of his Honour's sentencing discretion. His Honour did find special circumstances and it would appear to me to be an appropriate case for consideration to be given to an early release of the applicant on parole, after he completes the non-parole period of his sentence. I would propose that, although leave to appeal be granted, the appeal against sentence be dismissed. 20 GREG JAMES J: I agree with the orders proposed by the learned presiding judge and I agree with his reasons. Notwithstanding the eloquent submissions of counsel on his behalf that drew our attention to those matters which he submitted made this case by reason of the offender's prospects for rehabilitation, so exceptional that the normal legal range of sentences would not be applicable. I remain sitting as I do as a member of the Court concerned to discover error, unpersuaded that the trial judge fell into error of law initiating the sentence he passed. I therefore share the views that the learned judge presiding, as I have said. 21 JAMES J: The orders of the Court will be as proposed by me.