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Court of Criminal Appeal 30 May 2003

Regina v Hyde

[2003] NSWCCA 154

Also reported as 14 A Crim R 32
Theft & propertyPublic order & justice offences
SENTENCING PARTIALLY SUSPENDED SENTENCE BREACH OF S.12 BOND SETTING OF NON PAROLE PERIOD.

Citation: Regina v Hyde [2003] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 30 May 2003
Judge(s): James J; Smart AJ

Background

The applicant, a man in his early thirties with an extensive criminal history, was sentenced in the District Court for break, enter and steal. He had entered a unit in Gosford, forced open a window, and stolen a wristwatch before being arrested on the premises.

The sentencing judge imposed a two-year term of imprisonment but suspended the greater part of it under section 12 of the Crimes (Sentencing Procedure) Act 1999, releasing the applicant on a good behaviour bond. The bond came with conditions requiring him to reside at a rehabilitation hostel, complete a programme, and accept supervision by the Probation and Parole Service.

The applicant breached multiple bond conditions, re-offended, and was returned to custody in July 2002. The sentencing judge revoked the bond and imposed a fresh fixed term of two years, declining to set a non-parole period on the basis that rehabilitation was no longer a realistic prospect.

  • Whether the sentencing judge erred by reimposing the full two-year sentence upon revocation of the bond, when only part of that sentence had actually been suspended under section 12
  • Whether the judge erred in declining to set a non-parole period under section 44 of the Act

Decision

On the first issue, the Court of Criminal Appeal accepted the applicant's argument, which the Crown also conceded. Because the sentence had been only partially suspended, section 99(1)(c)(i) of the Act limited the court's power on revocation to reimposing only the suspended portion of the sentence. The period that had already been served in custody before the suspension took effect was not covered by the section 12 order and could not be reimposed. Only approximately 21 and a half months of the original sentence had been the subject of the suspension order, and it was only that portion which could become operative upon revocation of the bond.

On the non-parole period, the Court rejected the sentencing judge's approach of declining to set one altogether. The Act establishes that setting a non-parole period is the ordinary course, and the Court found that even a pessimistic assessment of the applicant's prospects did not justify removing all post-release supervision. The Court emphasised that some period of supervised parole serves the community's interests and gives at least some encouragement toward rehabilitation, even where prospects appear poor. The absence of any supervisory period was described as highly undesirable.

The Court re-sentenced the applicant to a term of 21 months and 15 days, with a non-parole period of 16 months, requiring supervised parole upon release.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; sentence quashed
  • In lieu of the sentence imposed, the applicant sentenced to imprisonment for 21 months and 15 days commencing 28 July 2002 and expiring 12 May 2004, with a non-parole period of 16 months expiring 27 November 2003
  • Release to supervised parole on 27 November 2003, with compliance with all reasonable conditions of the Probation and Parole Service

Key Takeaways

  • Under sections 12 and 99(1)(c)(i) of the Crimes (Sentencing Procedure) Act 1999, where a sentence is only partially suspended, revocation of the bond can only enliven the suspended portion of the sentence. The sentencing court cannot use revocation as a mechanism to reimpose the entirety of the original term.
  • A partially suspended sentence is a legitimate sentencing option, confirmed by Gamgee (2001) 51 NSWLR 707, but the scope of any subsequent revocation order is constrained strictly to the period that was actually suspended.
  • Declining to set a non-parole period requires specific justification under section 45 of the Act. The Court of Criminal Appeal found that a bleak rehabilitation prognosis alone did not satisfy that threshold where supervised parole could still serve the community's interests.
  • Setting a non-parole period is the default position under section 44. Departing from it requires the sentencing court to affirmatively identify a sufficient reason within the categories prescribed by section 45.
  • In re-sentencing, the Court treated the break, enter and steal offence as serious but noted it fell short of the most serious instances of that offence, given that only one item of modest value was taken and no violence occurred.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 44, 45, 98, 99
- Sentencing Act 1989 (NSW)

Cases:
- Gamgee (2001) 51 NSWLR 707
- Ponfield (1999) 48 NSWLR 327
- Roos v DPP (1994) 34 NSWLR 254