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Court of Criminal Appeal 24 March 2005

Regina v Lois Williams

[2005] NSWCCA 100

Also reported as 152 A Crim R 405
Assault & violence

Citation: Regina v Lois Williams [2005] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 24 March 2005
Judges: McClellan AJA, Adams J, Smart AJ

Background

The appellant was convicted of assault occasioning actual bodily harm arising from a stabbing incident in October 2000, committed while she was heavily intoxicated. She had a lengthy criminal history, a longstanding addiction to alcohol, and significant health problems including severe cardiovascular disease and kidney disease.

In November 2001, the sentencing judge placed her on a four-year good behaviour bond with supervision by the Probation and Parole Service, focusing on alcohol rehabilitation. No express condition of total abstinence from alcohol was imposed at that time. The appellant subsequently reoffended by driving with a mid-range prescribed concentration of alcohol on two separate occasions and repeatedly failed to comply with supervision requirements.

When called up for breach of the bond, the District Court resentenced her to 18 months imprisonment with a six-month non-parole period, and attached a parole condition requiring total abstinence from both illicit drugs and alcohol. The appellant sought leave to appeal against the length of the sentence and the terms of the parole condition.

  • Whether the 12-month parole period was appropriate in the circumstances
  • Whether the imposition of a blanket condition requiring total abstinence from alcohol was lawful and appropriate, having regard to clause 6 of the Crimes (Sentencing Procedure) Regulation 1999
  • What procedural steps a sentencing court must take before imposing a condition relating to treatment of alcoholism

Decision

The Court of Criminal Appeal found the 12-month parole period excessive and reduced it to nine months. By the time of the hearing, the appellant had established a cooperative working relationship with her new Probation and Parole officer, and the evidence indicated she was responding well to supervision. This change in circumstances supported a shorter parole term.

On the abstinence condition, the Court focused closely on clause 6 of the Crimes (Sentencing Procedure) Regulation 1999. That clause requires both the Probation and Parole Service and the sentencing court to give careful, individualised consideration before imposing any condition relating to the treatment of alcoholism. The court must also satisfy itself, by reference to the Probation and Parole officer's report, that compliance with the condition is actually feasible.

The Court found those procedural requirements had not been satisfied in this case. The evidence before the sentencing judge had in fact pointed in the opposite direction, with the Probation and Parole Service emphasising the appellant's lack of cooperation and indicating that an abstention condition was not feasible at that time. The Court struck out the alcohol abstinence component of the condition, leaving intact only the requirement to abstain from illicit drugs.

The Court expressly noted that its judgment did not address what the outcome would have been had the clause 6 requirements been properly satisfied. It also observed that the area may warrant further statutory and regulatory consideration.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The 12-month parole period quashed and substituted with a parole period of nine months, running from 13 August 2004 and expiring 12 May 2005
  • The condition requiring abstinence from illicit drugs and alcohol quashed
  • A replacement condition substituted requiring abstinence from illicit drugs only
  • Appeal otherwise dismissed

Key Takeaways

  • A condition requiring total abstinence from alcohol is a condition relating to treatment and must not be imposed as a matter of course on a sentencing bond or parole order.
  • Under clause 6 of the Crimes (Sentencing Procedure) Regulation 1999, both the Probation and Parole Service and the sentencing court must give careful, individual consideration to any proposed alcohol treatment condition, and the court must be satisfied from the officer's report that compliance is feasible.
  • Where the Probation and Parole Service's own evidence indicates that an abstention condition is not feasible, imposition of that condition will be vulnerable to appeal.
  • The Court of Criminal Appeal confined its reasoning strictly to cases where the clause 6 requirements had not been met, leaving open the question of what would follow where those requirements were properly addressed.
  • Changes in an offender's cooperation with supervision between sentencing and appeal can be relevant to the appropriate length of a parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Crimes (Sentencing Procedure) Regulation 1999 (NSW), cl 6
- Crimes (Administration of Sentences) Regulation 2001 (NSW)
- Crimes (Administration of Sentences) (Periodic Detention, Home Detention, Community Service Work and Parole) Regulation 1995 (NSW)

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Leete (2002) 125 A Crim R 37