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Court of Criminal Appeal 16 August 1999

REGINA v. PHILP

[1999] NSWCCA 253

Also reported as 108 A Crim R 336
Assault & violence
SENTENCING DEFERRED SENTENCE TERMS OF RECOGNISANCE ERROR AS TO LENGTH ERROR AS TO INAPPROPRIATE TERMS JUDGMENT AND LACK OF IMPARTIALITY

Citation: [1999] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 16 August 1999
Judges: Wood CJ at CL; Greg James J

Background

The applicant was convicted by jury of assault occasioning actual bodily harm arising from an incident in July 1996. He had been acquitted of a more serious charge on the same indictment. By the time he came before the District Court for sentencing in March 1999, nearly two years and nine months had elapsed since the offence, during which he had remained on conditional liberty.

During that intervening period, the applicant had returned to his wife, was caring for his children, had taken up educational courses, and was working during TAFE holidays. Apart from some convictions for assault in late 1996 for which he received fines and community service, there was no further criminal record.

The sentencing judge deferred passing sentence and directed the applicant to enter a recognisance of $2,000 to be of good behaviour for five years, subject to a number of conditions. The applicant challenged both the length of the recognisance and the appropriateness of its conditions, as well as aspects of the judge's conduct during the sentencing proceedings.

  • Whether the five-year duration of the recognisance was appropriate, given the lengthy period of prior conditional liberty and the nature of the conditions imposed
  • Whether the conditions of the recognisance were appropriate and proportionate to the offence
  • Whether specific conditions, including mandatory supervision for the entire term and a restriction on consuming alcohol in licensed premises, were lawful and appropriate
  • Whether the sentencing judge's conduct, including remarks about pre-determining any future breach outcome and the manner of questioning the applicant, constituted appealable error

Decision

The Court upheld the appeal, finding multiple errors in both the terms of the recognisance and in the conduct of the sentencing proceedings.

On the conditions of the recognisance, the Court found it inappropriate to require the applicant to remain under supervision of the Probation and Parole Service for the entire five-year term without allowing the Service any discretion to determine when supervision was necessary. The condition requiring the applicant to pursue TAFE literacy courses was also criticised as improperly controlling the applicant's private life in a manner unrelated, or only indirectly related, to the offence for which he was being sentenced. The Court drew on Bray CJ's remarks in Macpherson v Beath (1975) 12 SASR 174, deprecating the tendency to insert conditions into recognisances designed to control a defendant's private life.

The alcohol-related condition, prohibiting consumption in any licensed premises but permitting drinking at home, was described as "peculiar to say the least." The Court noted that the applicant's relevant offending had occurred in domestic contexts, not in licensed premises, making the condition inconsistent with both the offence and his record.

The Court was equally critical of the judge's conduct during the proceedings. The sentencing judge had told the applicant in terms that, if he breached the recognisance, it would be "humanly possible" to bring him back before the same judge who would then imprison him, and that defence submissions would make no difference. The Court found this created a reasonable apprehension of pre-determination and a lack of impartiality. The questioning of the applicant, a young illiterate Aboriginal man who had demonstrated genuine rehabilitation, was characterised as patronising and hostile, and inconsistent with the detachment and dispassion required of a sentencing judge.

Orders Made

  • Appeal upheld

Key Takeaways

  • A deferred sentence structured around a recognisance must have conditions that are proportionate to and connected with the offence; conditions that control an offender's private life in areas unrelated to the crime are susceptible to challenge on appeal.
  • Mandatory supervision for the entire term of a recognisance is inappropriate where the sentencing instrument does not allow the Probation and Parole Service any discretion to determine whether supervision remains necessary.
  • Remarks by a sentencing judge indicating that any future breach of a recognisance will result in imprisonment, and that defence submissions will be futile, risk creating an apprehension of pre-determination inconsistent with the impartiality required of the judicial role.
  • Positive conduct during a lengthy period of pre-sentence conditional liberty is a material consideration in determining both the appropriate length and conditions of a deferred sentence.
  • Sentencing proceedings require objective detachment; a patronising or hostile attitude toward an offender, particularly one who has demonstrated genuine rehabilitation, is inconsistent with the proper exercise of the sentencing function.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 558

Cases:
- Macpherson v Beath (1975) 12 SASR 174
- Harvey (1989) 40 A Crim R 102
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Davis (1984) 3 NSWLR 572
- Gibson v O'Keefe (Einstein J, 20 May 1998)