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Court of Criminal Appeal 25 June 2002

Regina v Hunt

[2002] NSWCCA 266

Sexual offencesTraffic & drivingPublic order & justice offences
SENTENCING SUSPENDED SENTENCE BREACH OF CONDITIONS

Citation: Regina v Hunt [2002] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 25 June 2002
Judge(s): Smart AJ, Blanch AJ

Background

The applicant had been sentenced in November 2000 to twenty months imprisonment for inciting a child under sixteen to commit an act of indecency. The sentencing judge (Goldring DCJ) suspended the sentence and released the applicant on a good behaviour bond, with an explicit warning that any breach would result in the full twenty months being served.

Less than three months into the bond, the applicant was found driving while disqualified and under the influence of alcohol in Cooma, and then escaped from police custody. He was subsequently convicted of those offences in the Local Court and sentenced to three months imprisonment on each charge.

The District Court (Shillington DCJ) revoked the bond and dealt with the breach. That judge treated the reinstatement of the original twenty-month term as essentially automatic, fixing a non-parole period of fifteen months commencing from the expiry of the sentences for the breaching offences. The applicant sought leave to appeal against the severity of that outcome.

  • Whether the District Court erred by failing to apply the resentencing framework under section 99 of the Crimes (Sentencing Procedure) Act 1999 when dealing with the bond breach, in particular the obligation to resentence as if sentencing after conviction
  • Whether the District Court erred by failing to conduct an independent consideration of the facts and circumstances of the original offence and the applicant's subjective circumstances when resentencing

Decision

The Court of Criminal Appeal found that Shillington DCJ had fallen into legal error in two respects. First, once the bond was revoked, section 99(4) of the Crimes (Sentencing Procedure) Act 1999 required the court to apply the whole of the Act to the resentencing exercise, just as if sentencing an offender after conviction. The judge had instead treated reinstatement of the original twenty-month term as virtually mandatory, which misapplied the statutory scheme.

Second, the District Court failed to conduct any independent assessment of the facts of the original offence or the applicant's subjective circumstances. Those circumstances were described as quite significant: the applicant had made genuine attempts at rehabilitation, had completed a residential program at Oolong House, was in full-time employment, and had relevant family responsibilities. None of this appeared to have been weighed in the resentencing exercise.

The Court of Criminal Appeal noted that, while alternatives such as periodic detention were technically available under section 99(2), a full-time custodial sentence was required given the nature of the original offence (a sexual offence against a child) and the fact that the applicant had failed to abstain from alcohol and had committed further offences. The appropriate sentence remained twenty months imprisonment, but the Court backdated its commencement to 16 November 2001 and fixed a non-parole period of ten months rather than the fifteen months imposed below.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentence imposed by Shillington DCJ quashed
  • In lieu, the applicant sentenced to twenty months imprisonment commencing 16 November 2001 and expiring 15 July 2003, with a non-parole period of ten months commencing 16 November 2001 and expiring 15 September 2002, on which date the applicant to be released on supervised parole

Key Takeaways

  • Under section 99(4) of the Crimes (Sentencing Procedure) Act 1999, revoking a suspended sentence bond does not automatically reinstate the original term unchanged. The resentencing court must apply the full sentencing framework as if sentencing the offender after conviction.
  • A court resentencing after bond breach is required to conduct an independent assessment of the offence and the offender's subjective circumstances, rather than simply adopting findings made by the original sentencing judge.
  • Although section 99(2) permits alternatives such as periodic detention or home detention upon resentencing, the Court of Criminal Appeal confirmed that a full-time custodial sentence was appropriate here given the sexual nature of the original offence and the applicant's continued misconduct.
  • The District Court's failure to engage with the statutory resentencing process under section 99 constituted legal error sufficient to warrant the quashing of the sentence on appeal.
  • Backdating the commencement of a resentencing order was available to the Court of Criminal Appeal as a mechanism to produce an appropriate outcome where the timing of earlier sentences complicated the calculation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 24, 98(3), 99(2), 99(4)
- Crimes Act 1900 (NSW)

Cases
- R v Foster [2001] NSWCCA 215