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9
Supreme Court 24 May 2004

DPP v Burrow & Anor

[2004] NSWSC 433

Public order & justice offences
CRIMINAL LAW SUSPENDED SENTENCES S12 BONDS BREACH BY FURTHER OFFENCES WHETHER BONDS SHOULD BE REVOKED

Citation: DPP v Burrow & Anor [2004] NSWSC 433
Court: Supreme Court of New South Wales, Common Law Division
Date: 24 May 2004
Judge(s): Hidden J

Background

The first defendant had been convicted of two counts of committing an act of indecency and sentenced to concurrent twelve-month terms of imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. As a condition of that suspension, he was directed to enter into good behaviour bonds. He later committed two offences of impersonating a police officer, which constituted breaches of those bonds.

The impersonating offences were unusual in character. In the first, the defendant produced a police badge obtained from a wall plaque to confront a man he suspected of attempting to break into parked cars, and in the second, he used the badge to gain entry to a railway station without purchasing a ticket. Neither incident involved any personal gain or serious harm.

When the breach proceedings came before the Local Court, the magistrate convicted the defendant of the impersonating offences and imposed substantial fines, but declined to revoke the s 12 bonds. The Director of Public Prosecutions appealed to the Supreme Court, contending that the magistrate had erred in law by failing to properly apply s 98(3) of the Act.

  • Whether the magistrate's refusal to revoke the s 12 good behaviour bonds involved a legal error, specifically a failure to apply s 98(3) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the fact that the breach offences were different in nature from the offences subject to the suspended sentence could, of itself, justify declining to revoke a bond under s 98(3)(b)
  • Whether the DPP's appeal lay under s 56(1) of the Crimes (Local Courts Appeal and Review) Act 2001 as an appeal against a "sentence", or alternatively by way of prerogative relief for constructive failure to exercise jurisdiction

Decision

Hidden J found that s 98(3) imposes a presumption of revocation. A court must revoke a s 12 bond unless it is satisfied either that the failure to comply was trivial in nature (par (a)) or that there are good reasons for excusing the failure (par (b)). The magistrate had expressly noted that the offences were not trivial, so par (a) was unavailable. The only potential basis for declining to revoke was par (b).

The magistrate's stated reason for taking no action was that the breach offences were unrelated in character to the offences for which the suspended sentence had been imposed. Hidden J accepted that the dissimilarity between offences may be a relevant consideration under par (b), but held that it cannot, standing alone, constitute "good reasons for excusing the offender's failure" to comply. His Honour also indicated that par (b) does not permit a court to rely solely on the offender's subjective circumstances at the time of the revocation hearing, or on the severity of the penalty already imposed for the fresh offences.

Because s 98(3) was not engaged at all in the magistrate's reasoning, her Honour had constructively failed to exercise her jurisdiction. Hidden J noted that the unusual circumstances of the impersonating offences might yet permit a finding under s 98(3)(b) on remittal, but expressed no view on how that question should be resolved.

On the question of the appeal pathway, Hidden J found it unnecessary to determine whether the magistrate's refusal to revoke the bonds constituted a "sentence" for the purposes of s 56(1) of the Crimes (Local Courts Appeal and Review) Act 2001. The DPP was in any event entitled to prerogative relief on the basis of the constructive failure to exercise jurisdiction, following Saffron v DPP (1989) 16 NSWLR 397.

Orders Made

  • Matter remitted to the Local Court for further consideration according to law.
  • The precise terms of any formal declarations and costs orders were reserved pending consultation with the parties.

Key Takeaways

  • Under s 98(3) of the Crimes (Sentencing Procedure) Act 1999, revocation of a s 12 good behaviour bond is the default position; a court must revoke unless one of the two statutory exceptions is satisfied.
  • The dissimilarity between the breach offence and the original offence subject to a suspended sentence may be relevant to the s 98(3)(b) inquiry, but it cannot by itself constitute "good reasons for excusing" non-compliance.
  • A magistrate who declines to revoke a s 12 bond without addressing the s 98(3) framework at all commits a constructive failure to exercise jurisdiction, rendering the decision amenable to prerogative relief.
  • Hidden J indicated that s 98(3)(b) does not permit a court to excuse a breach on the basis of the offender's subjective circumstances alone, or by reference to the penalty already imposed for the fresh offences.
  • Where a constructive failure to exercise jurisdiction is established, the Supreme Court may set aside the decision and remit the matter to the Local Court for determination according to law, without itself resolving the discretionary question.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 98, 99
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 56(1)
- Crimes Act 1900 (NSW), s 61N(2)
- Police Act 1990 (NSW), s 204

Cases
- Saffron v DPP (1989) 16 NSWLR 397
- R v Zamagias [2002] NSWCCA 17
- R v Moylan [1970] 1 QB 143
- R v Marston (1993) 60 SASR 320
- R v Holcroft [1997] 2 Qd R 392