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Court of Criminal Appeal 21 February 2003

R v Bryant

[2003] NSWCCA 34

Assault & violenceDrugsTheft & property

Citation: Bryant v R [2003] NSWCCA 34
Court: New South Wales Court of Criminal Appeal
Date: 21 February 2003
Judge(s): James J; Greg James J

Background

The appellant pleaded guilty in the District Court to assault with intent to rob whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act. The offence involved entering a bakery early on a Sunday morning, producing a knife with a ten-centimetre blade, and demanding the owner fill a bag. The shop owner retreated and the appellant fled without taking anything. He was arrested shortly afterwards, with the knife found concealed in his sock.

Judge Keleman sentenced the appellant to five years imprisonment, commencing on the date of arrest (21 October 2001), with a non-parole period of three years. His Honour allowed a discount of approximately 25 per cent for the early guilty plea, including a component for contrition, and found special circumstances justifying the extended additional term on account of the appellant's drug dependency and rehabilitation needs.

The appellant sought leave to appeal against the sentence on the ground that it was excessive, pointing particularly to his drug addiction, motive (hunger and desperation rather than greed), and reasonable prospects of rehabilitation.

  • Whether the sentence of five years with a three-year non-parole period was within the proper range for an offence of assault with intent to rob whilst armed with a knife.
  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including his drug addiction, motive, and prospects of rehabilitation.
  • Whether the appellant's case was so exceptional that the ordinary sentencing range identified in the guideline judgment R v Henry should not have applied.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentence imposed. James J concluded that the sentence did not exceed the upper limit of the range available to the sentencing judge in the proper exercise of his discretion.

The Court accepted that the sentencing judge had properly applied the guideline judgment in R v Henry, as qualified by R v Thompson. The appellant's offence exhibited five of the seven characteristics associated with the sentencing range of four to five years for the full term. Although nothing was taken, the appellant had a recent prior history of offences of the same kind, which weighed against him on the characteristic of having little or no criminal history.

On the question of motive, the Court held that the sentencing judge was entitled to find that the appellant's claimed motive (hunger and need for food) did not materially diminish his criminality. The Court noted that many offences are committed by persons who consider themselves in serious financial need. The finding of only reasonable rehabilitation prospects was also open on the evidence, given that the appellant had relapsed into intravenous heroin use shortly after completing a ten-month rehabilitation program.

Greg James J agreed with the orders and reasoning, adding that he was unpersuaded the trial judge had committed any error of law in passing the sentence, notwithstanding the eloquent submissions advanced on the appellant's behalf.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A claimed motive of hunger or personal desperation does not, without more, materially reduce an offender's criminality for the purposes of sentencing on an armed robbery charge.
  • The Court of Criminal Appeal confirmed its role as a court of error: it will not intervene merely because a different sentence might have been available, but only where the sentence falls outside the proper range of discretionary options.
  • Under the guideline in R v Henry, the presence of a recent prior history of similar offending negates the mitigating characteristic of having little or no criminal history, even where other subjective features favour the offender.
  • A finding of "reasonable" (rather than strong) rehabilitation prospects is open where an offender has previously completed a rehabilitation program but subsequently relapsed into serious drug use.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act were found on account of the appellant's drug dependency, extending the additional term to allow for a longer supervisory period on release, but this did not render the overall sentence excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob whilst armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery offences)
- R v Thompson (2000) 49 NSWLR 383 (qualification of the Henry guidelines)