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Supreme Court 11 June 1999

R v TARAWA

[1999] NSWSC 597

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING AFFRAY CRIMINAL LAW SENTENCING BREACH OF COMMUNITY SERVICE ORDER

Citation: R v Tarawa [1999] NSWSC 597
Court: Supreme Court of New South Wales, Criminal Division
Date: 11 June 1999
Judge(s): Barr J

Background

The prisoner had previously pleaded guilty to affray under s 93C of the Crimes Act, arising from a brawl outside a suburban Sydney service station. Acting Justice Howie had sentenced him in November 1997 to a 200-hour Community Service Order (CSO), comprising 150 hours of community service work and 50 hours at an attendance centre, rather than imposing full-time imprisonment.

The prisoner completed only 39 of the 150 work hours and 23 of the 50 attendance centre hours before losing contact with the Probation and Parole Service entirely. Despite ten letters and multiple oral warnings, he ceased participation in early 1998.

The prisoner was called up for breach of the CSO in November 1998, convicted of the breach offence under the Community Service Orders Act 1979, and committed to the Supreme Court for sentencing. He failed to appear on two court dates, had his bail revoked, and was ultimately arrested in May 1999.

  • What was the appropriate response to the prisoner's serious breach of the CSO, under s 25(4) of the Community Service Orders Act 1979?
  • Whether the court should revoke the original CSO and re-sentence the prisoner for the affray, impose a fine, or take no action.
  • Whether periodic detention or full-time imprisonment was the more suitable form of custody, having regard to the prisoner's psychological profile and history of non-compliance under stress.

Decision

Barr J concluded that the breach was too serious for the court to take no action. The prisoner's compliance had been sporadic from the outset, and despite extensive warnings, he had abandoned the order entirely. His explanation, centred on personal instability following a relationship breakdown, did not adequately account for his failure to communicate with his supervising officers.

The court accepted evidence that the prisoner's period of instability around late 1998 to early 1999 had genuinely impaired his capacity to meet his obligations. A psychologist's report described a pattern of internalising stress until reaching a breaking point, then abandoning commitments, which Barr J found to be a remarkably accurate characterisation of both the original offence and the subsequent non-compliance.

Although the Probation and Parole officer assessed the prisoner as suitable for periodic detention, Barr J declined to follow that recommendation. Given the prisoner's psychological profile and the prospect of renewed domestic stresses upon his return home, the court considered that periodic detention carried a real risk of further non-compliance. A short term of full-time detention was regarded as the appropriate response.

In re-sentencing for the affray, Barr J took into account the original CSO and the partial work and attendance completed under it, as required by s 26 of the Community Service Orders Act 1979. No action was taken on the separate breach offence.

Orders Made

  • The Community Service Order was revoked.
  • The prisoner was sentenced to a fixed term of two months' imprisonment for the affray, commencing 2 May 1999 and expiring 1 July 1999.
  • Credit was given for the work and attendances completed under the revoked CSO.
  • No action was taken in relation to the separate breach offence.

Key Takeaways

  • Under s 25(4) of the Community Service Orders Act 1979, the Supreme Court has the power to revoke a CSO and re-sentence for the original offence, impose a fine, or take no action; a serious pattern of non-compliance will ordinarily preclude the "no action" option.
  • Where a court re-sentences following revocation of a CSO, s 26 of the Act requires that the original order and any work completed under it be taken into account.
  • A pre-sentence report recommendation in favour of periodic detention is not determinative; the Supreme Court here departed from that recommendation on the basis of psychological evidence indicating a risk of repeated non-compliance under stress.
  • Upholding the revocation and imposing imprisonment, Barr J treated the prisoner's failure to engage with supervising officers, rather than the underlying personal difficulties, as the more significant factor in assessing the seriousness of the breach.
  • Partial completion of a CSO can be credited at re-sentencing, but will not necessarily prevent the imposition of full-time custody where the overall history of compliance is poor.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 93C (affray)
- Community Service Orders Act 1979 (NSW), ss 23, 25(1)(c), 25(4), 26

Cases: No cases were cited in the judgment.