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Court of Criminal Appeal 26 November 2004

REGINA v. GUY GRAHAM

[2004] NSWCCA 420

Also reported as 62 NSWLR 252
Assault & violencePublic order & justice offences
SENTENCING SUSPENDED SENTENCE OPERATION REVOCATION OF GOOD BEHAVIOUR BOND

Citation: Regina v Guy Graham [2004] NSWCCA 420
Court: New South Wales Court of Criminal Appeal
Date: 26 November 2004
Judges: Beazley JA; Wood CJ at CL; Hulme J

Background

The applicant pleaded guilty in the District Court to affray under s 93C of the Crimes Act 1900 (NSW), arising from an incident in which he forced his way into a neighbour's unit armed with a knife and threatened to kill him. On 7 March 2003, the sentencing judge imposed a two-year term of imprisonment but immediately suspended it under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), releasing the applicant on a good behaviour bond for the term of the sentence. A condition of the bond required him to report to the Probation and Parole Service and obey its reasonable directions.

The applicant failed to report as required during a period of approximately five weeks in mid-2023, breaching the bond after complying for only four months. On 16 October 2003, the sentencing judge revoked the bond and ordered the original two-year sentence to take effect from that date, with a non-parole period of 18 months.

The applicant appealed, arguing that once the bond was revoked, the sentence should have been treated as running from the original sentencing date of 7 March 2003, not from the date of revocation. That argument, if accepted, would have given him credit for the period between the original sentence and revocation.

  • Whether, upon revocation of a good behaviour bond under s 99 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the reinstated sentence of imprisonment commences from the date of the original sentencing or from the date of the revocation order.
  • The proper construction of s 12(3) and s 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and their interaction with s 47 (commencement of sentence) and Part 4 of that Act.
  • Whether any right of appeal lies from a revocation order made under s 99.
  • Whether the original two-year sentence was excessive in the circumstances.

Decision

Beazley JA (with whom Wood CJ at CL and Hulme J agreed) held that the sentence commences from the date of revocation, not the original sentencing date. Under s 12(3), when a sentence is suspended, execution of that sentence is stayed. The term of the sentence does not begin to run during the period of suspension. Part 4 of the Act, which governs commencement of sentences under s 47, does not apply to a suspended sentence unless and until a revocation order is made.

Section 99(1)(c) makes this explicit: upon revocation, the suspension order ceases to have effect, Part 4 then applies, and the sentence "takes effect" at that point. Beazley JA noted that this construction was confirmed by the earlier Court of Criminal Appeal decision in R v Tolley [2004] NSWCCA 165. The applicant received no credit for the period when the sentence was suspended, because the sentence was never running during that time.

On the question of a right of appeal from a revocation order, Beazley JA observed that this was uncertain. The Crown submitted no right of appeal flows from s 99 unless the order could be characterised as interlocutory, or unless relief might be sought by prerogative writ. Her Honour left the question open, as it was unnecessary to resolve it given her conclusions on the substantive ground. She also noted that s 43, which allows a court to reopen proceedings to correct a sentencing error, did not apply here.

As to the original sentence, the court found the two-year term was not excessive having regard to the seriousness of the offending, applying the sentencing principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Beazley JA concluded the judgment with a notable observation that the legislative interaction between s 99(1)(c) and s 47, and the associated appeal rights, revealed significant drafting inadequacies that warranted urgent legislative attention.

Orders Made

  • Time for seeking leave to appeal against the original sentence extended to 2 August 2004.
  • Leave to appeal granted pursuant to ss 5(1)(c) and 10(1)(b) of the Criminal Appeal Act 1912 (NSW).
  • Appeal dismissed.

Key Takeaways

  • Under s 12(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), suspending a sentence suspends its execution entirely. The term of imprisonment does not begin to run during the period of suspension.
  • Upon revocation of a good behaviour bond imposed under s 12, s 99(1)(c) operates so that the sentence takes effect from the date of revocation, not the original sentencing date. An offender receives no credit for time elapsed during the suspension.
  • This construction was confirmed by the Court of Criminal Appeal in R v Tolley [2004] NSWCCA 165, and Regina v Guy Graham applied and reinforced that approach.
  • Whether a right of appeal exists from a revocation order under s 99 remains unresolved. Beazley JA flagged the issue as uncertain and called for legislative reform to clarify both the appeal rights and the interaction between s 99(1)(c) and s 47.
  • In dismissing the appeal, the court found a two-year sentence for an unprovoked knife-wielding affray was not excessive, applying the standard sentencing principles from R v Thomson; R v Houlton.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 43, 44, 45, 46, 47, 98, 99
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(1)(b)
- Crimes Act 1914 (Cth)

Cases
- R v Tolley [2004] NSWCCA 165
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Charters [2004] NSWCCA 40
- R v Hyde (2003) 142 A Crim R 32
- R v Carngham (1978) 140 CLR 487