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Court of Criminal Appeal 25 September 2002

Regina v Brandon Thomas Abbott

[2002] NSWCCA 389

Assault & violencePublic order & justice offences
APPEAL AGAINST SENTENCE ASSAULT POLICE AND MALICIOUS DAMAGE APPEAL AGAINST HEAD SENTENCE ONLY STRONG SUBJECTIVE CASE VARIOUS CONDITIONS OF PAROLE REMOVED.

Citation: Regina v Brandon Thomas Abbott [2002] NSWCCA 389
Court: NSW Court of Criminal Appeal
Date: 25 September 2002
Judge(s): Buddin J; Smart AJ

Background

The applicant pleaded guilty in the District Court to one count of assaulting a police officer in the execution of his duty and one count of malicious damage to property, each carrying a maximum penalty of five years' imprisonment. The pleas were entered at the first reasonable opportunity, and three additional assault police offences were taken into account on a Form 1. The sentencing judge imposed two concurrent three-year sentences with a six-month non-parole period, commencing 30 November 2001.

The underlying incident occurred in the early hours of 2 June 2001 at a residential address in Nambucca Heads. Police responded to a disturbance and found the applicant, who appeared heavily affected by alcohol, on a verandah armed with a steak knife and a house brick. He threatened officers, damaged the exterior fibro walls of the premises, smashed two windows, and threw a knife and brick at police before eventually surrendering.

The applicant had previously filed a Notice of Abandonment of his appeal, apparently prompted by information from prison authorities about administrative arrangements and made without legal advice. He subsequently filed for an extension of time, an affidavit explaining the circumstances of the abandonment, and sought leave to challenge both the length of the head sentences and certain parole conditions. The Crown did not oppose the grant of leave.

  • Whether leave should be granted to withdraw the Notice of Abandonment of Appeal, given the abandonment had been made without legal advice
  • Whether an extension of time for the appeal application should be granted
  • Whether the head sentences of three years were manifestly excessive given the applicant's subjective circumstances
  • Whether two of the parole conditions imposed by the District Court were validly made

Decision

The Court of Criminal Appeal granted leave to withdraw the Notice of Abandonment. The abandonment had been made without legal advice and in response to misinformation from prison authorities about administrative arrangements. The Court treated the question of whether a miscarriage of justice may have occurred as a critical consideration, consistent with the approach in R v Cartwright and R v Young, and the Crown's non-opposition supported the grant.

On the question of manifest excess, the Court accepted that the applicant presented a strong subjective case. The sentencing judge had already reduced the otherwise appropriate sentence by 20 percent to reflect the early guilty plea, consistent with R v Thomson & Houlton and Cameron v The Queen. Nonetheless, the Court found the three-year head sentences were manifestly excessive when the relevant sentencing considerations under section 21A of the Crimes (Sentencing Procedure) Act 1999 were applied.

The Court reduced the sentence for the assault police count (count 2) to 18 months with a six-month non-parole period, and the sentence for malicious damage (count 3) to nine months with a three-month non-parole period, both running concurrently from 30 November 2001. The non-parole periods, which had already been served by the time of the appeal, were confirmed.

On the parole conditions, the Court deleted conditions 1 and 3 (requiring the applicant to appear before a court if called upon, and to advise the court clerk of any change in residential address) but confirmed the remaining conditions, including supervision by the Probation and Parole Service, programme attendance, and residence requirements. The Court found no failure to comply with the Crimes (Sentencing Procedure) Regulation 2000 in relation to the condition requiring attendance at programmes as directed by the Probation Service, noting that the decision in those matters was contingent on the Probation Service's own discretion.

Orders Made

  • Leave granted to withdraw Notice of Abandonment of Appeal
  • Extension of time granted
  • Leave to appeal granted
  • Appeals against sentence allowed
  • District Court sentences quashed
  • Count 2 (assault police): 18 months' imprisonment, non-parole period of six months, commencing 30 November 2001 and expiring 29 May 2003; non-parole period expiring 29 May 2002
  • Count 3 (malicious damage): nine months' imprisonment, non-parole period of three months, commencing 30 November 2001 and expiring 29 August 2002; non-parole period expiring 27 February 2002
  • Parole conditions 1 and 3 deleted; remaining conditions confirmed

Key Takeaways

  • A Notice of Abandonment of an appeal does not automatically foreclose further proceedings: the Court of Criminal Appeal retained discretion under the Criminal Appeal Act 1912 and Criminal Appeal Rules to permit withdrawal of the notice, particularly where it was filed without legal advice and in response to misinformation.
  • The potential for a miscarriage of justice operates as a critical consideration when a court assesses whether to grant an extension of time to appeal against sentence.
  • Three-year concurrent sentences for assault police and malicious damage were held manifestly excessive where the applicant had a strong subjective case, had pleaded guilty at the first reasonable opportunity, and had already received a 20 percent discount for that plea.
  • A parole condition requiring attendance at programmes or counselling at the Probation Service's direction did not breach the Crimes (Sentencing Procedure) Regulation 2000 where the obligation was contingent on the Probation Service exercising its own discretion, rather than mandating a specific third party's involvement without consent.
  • Conditions of parole that replicate general legal obligations (such as appearing before a court if called upon) are susceptible to deletion from a parole order on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes (Sentencing Procedure) Regulation 2000 (NSW)
- Criminal Appeal Act 1912 (NSW), s 10(3)
- Criminal Appeal Rules (NSW), Rule 27

Cases:
- 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