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Court of Criminal Appeal 18 March 2002

Regina v Cook

[2002] NSWCCA 113

Assault & violencePublic order & justice offences
SENTENCING APPEAL BREACH OF A S12 BOND

Citation: Regina v Cook [2002] NSWCCA 113
Court: New South Wales Court of Criminal Appeal
Date: 18 March 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant had been convicted in May 2000 of assault occasioning actual bodily harm, arising from a drunken brawl at a hotel in Inverell. Rather than imposing immediate custody, the sentencing judge suspended an 18-month sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999, conditional on the applicant entering into a good behaviour bond.

The applicant complied with the bond for approximately four months before committing further offences in October 2000: malicious damage, use of offensive language, and breaching an apprehended violence order. He was convicted of those offences in April 2001 and was called up for breach of the original bond.

In July 2001, Price DCJ in the District Court at Armidale re-sentenced the applicant to 18 months imprisonment with a non-parole period of 10 months, noting special circumstances arising from the applicant's need for supervision to address his alcohol problems. The applicant sought leave to appeal that sentence, appearing in person via written submissions.

  • Whether the sentencing judge was required to reduce the head sentence to reflect the approximately four months during which the applicant had complied with the bond before breaching it
  • Whether the circumstances of the original offence (including the applicant's own injuries) warranted leniency on re-sentencing
  • Whether family hardship was a relevant mitigating factor in the circumstances
  • Whether, as a matter of legal principle, a court has power under the relevant statutory provisions to reduce a suspended sentence to account for partial compliance with a bond

Decision

On the first and most substantive ground, Carruthers AJ noted that the applicant had complied with the bond for only slightly more than 25 per cent of its total term. In those circumstances, his Honour was not persuaded that this partial compliance justified any reduction in the sentence imposed. The Court did not need to resolve the Crown's broader argument that the statutory scheme contains no mechanism allowing the original suspended sentence to be shortened for partial bond compliance.

Dunford J flagged that the interrelationship between sections 12, 24(b), 98(3) and 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999 raises a question of general principle about whether a head sentence can be reduced where a bond is adhered to for only part of its term. His Honour noted that this issue, being a question of principle, is not appropriate for determination by a two-judge bench under section 6AA(2) of the Criminal Appeal Act 1912 and should, in a suitable case, be considered by a bench of three judges.

On the question of family hardship, Carruthers AJ confirmed that incarceration causing hardship to a prisoner's family is an accepted consequence of imprisonment. Hardship to family members can only constitute a mitigating factor in extreme or highly exceptional circumstances where it would be inhumane to disregard it, a demanding test that the applicant's circumstances did not meet.

The remaining grounds, including the circumstances of the original offence and the applicant's own injuries during the brawl, were also rejected. The breach itself had arisen from three further criminal offences, which the Court treated as a relevant aggravating factor demonstrating disregard for the bond conditions. The non-parole period was characterised as generous in the circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Partial compliance with a suspended sentence bond does not automatically entitle an offender to a reduction in the head sentence when the bond is later breached, at least where the period of compliance is modest.
  • A question of general principle remains unresolved: whether sections 12, 24(b), 98(3) and 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999 permit a court to reduce a suspended sentence to account for partial bond compliance. The Court of Criminal Appeal held this issue requires determination by a three-judge bench in a suitable case.
  • Under the authority of R v Edwards (1996), family hardship carries mitigating weight only in extreme or highly exceptional circumstances where it would be inhumane to refuse to do so. Ordinary hardship flowing from imprisonment does not meet this threshold.
  • Commission of further offences during the bond period is a relevant aggravating factor on re-sentencing, reflecting a demonstrated lack of respect for the obligations imposed by the bond: R v Hansen (1961).
  • The Criminal Appeal Act 1912 section 6AA(2) precludes a two-judge bench from determining questions of general legal principle, even where those questions arise incidentally in a sentencing appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 59
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 12, 24(b), 98(3), 99(1)(c)
- Criminal Appeal Act 1912 (NSW) s 6AA(2)

Cases
- R v Edwards (1996) 90 A Crim R 510
- R v Hansen (1961) 79 WN (NSW) 148