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Court of Criminal Appeal 9 July 2007

R v COOKE; COOKE v R

[2007] NSWCCA 184

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE REVOCATION OF GOOD BEHAVIOUR BONDS IMPOSITION OF PERIODIC DETENTION WHETHER BREACH TRIVIAL

Citation: R v COOKE; COOKE v R [2007] NSWCCA 184
Court: New South Wales Court of Criminal Appeal
Date: 9 July 2007
Judge(s): Tobias JA; Latham J; Fullerton J

Background

The respondent, a young adult male, was sentenced by the Local Court in September 2005 to suspended sentences of 15 months for three counts of break, enter and steal and one count of malicious damage to property. These were his first offences, committed shortly after he turned 18. The suspended sentences were accompanied by good behaviour bonds and a requirement to participate in a drug rehabilitation program.

Five months later, the respondent was involved in a street fight outside Cabramatta Railway Station. He punched and kicked the victim while the victim was on the ground, causing facial injuries requiring sutures. This conduct gave rise to a charge of malicious wounding in company under s 35(2) of the Crimes Act 1900, and also constituted the breach of his good behaviour bonds.

In the District Court, Acting Judge Mahoney initially declined to revoke the bonds and imposed a fresh suspended sentence of 18 months for the malicious wounding. The Court of Appeal found error in that approach and remitted the bond revocation question. On remittal, the judge revoked the bonds and ordered the original 15-month sentence be served by way of periodic detention. The Crown appealed the adequacy of the suspended sentence for the malicious wounding, while the respondent sought leave to appeal against the periodic detention order.

  • Whether the breach of the good behaviour bonds was "trivial in nature" or otherwise excusable under s 98(3) of the Crimes (Sentencing Procedure) Act 1999, such that revocation could be avoided
  • Whether the District Court judge's order for periodic detention on revocation of the bonds was correct
  • Whether a suspended sentence was an adequate penalty for the malicious wounding in company, and whether it was prohibited by s 12(2) of the Crimes (Sentencing Procedure) Act given the respondent was already subject to periodic detention
  • Whether the Crown appeal against inadequacy of the malicious wounding sentence should result in re-sentencing, notwithstanding the Court's residual discretion not to intervene

Decision

Respondent's appeal against periodic detention: The Court dismissed the respondent's appeal against the periodic detention order. Section 98(3) of the Crimes (Sentencing Procedure) Act requires a court to revoke a bond imposed under s 12 unless the breach was trivial or there are good reasons to excuse it. The Court found that participation in a street fight and inflicting physical injuries on another person could not be characterised as a trivial breach. The periodic detention order that followed revocation was upheld.

Interaction between the two sentences: The Court observed a procedural complication arising from the original error at first instance. Because the judge had failed to deal with the bond revocation before sentencing for the malicious wounding, a suspended sentence was imposed for that offence before the bonds were revoked. Had the correct approach been taken from the outset, s 12(2) of the Crimes (Sentencing Procedure) Act would likely have prohibited a second suspended sentence, given the respondent would already have been subject to an order for periodic detention at the time of sentencing for the malicious wounding.

Crown appeal against the suspended sentence: The Court accepted the Crown's submission that a suspended sentence for an offence involving physical violence, committed in company, was manifestly lenient. It failed to reflect the objective seriousness of the offending or to give adequate weight to general and specific deterrence. The fact that the respondent had otherwise progressed positively did not neutralise the seriousness of the lapse.

Residual discretion not to re-sentence: Despite finding error, the Court exercised its residual discretion not to intervene and re-sentence. The Court was influenced by the unusual delay in resolving the appeals, caused not by any fault of the respondent but by the need to litigate the matter in two stages across multiple courts. The totality principle would also have required a less severe outcome had the sentencing been conducted without error from the beginning. The Court noted that the suspended sentence, with its associated bonds expiring in March 2008, remained in place and continued to expose the respondent to further consequences.

Orders Made

  • Crown appeal against inadequacy of sentence: dismissed
  • Respondent's application for leave to appeal against the order revoking the bonds and imposing periodic detention: leave granted; appeal dismissed

Key Takeaways

  • Under s 98(3) of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a good behaviour bond imposed under s 12 unless the breach was trivial or there are good reasons to excuse it; participation in a street brawl causing physical injury does not meet that threshold.
  • Periodic detention is available as a sentencing option following revocation of a s 12 bond under s 99(2), and the Court of Criminal Appeal confirmed the order in this case was within the sentencing judge's power.
  • A second suspended sentence imposed for fresh offending involving physical violence was found to be manifestly inadequate, failing to reflect objective seriousness and the requirements of general and specific deterrence.
  • Even where appellate error is established on a Crown appeal, the Court of Criminal Appeal retains a residual discretion not to re-sentence; here, that discretion was exercised in the respondent's favour due to prolonged procedural disruption for which the respondent bore no responsibility.
  • Procedural sequencing in bond revocation matters is significant: where a judge should have revoked bonds before sentencing for the triggering offence, the order in which steps are taken can affect what sentencing options are lawfully available, including whether s 12(2) bars the imposition of a further suspended sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 98, 99
- Criminal Appeal Act 1912 (NSW), ss 2(1)(ca), 5D

Cases:
- DPP v Burrow & Anor [2004] NSWSC 433
- DPP v Cooke & Anor [2007] NSWCA 2
- R v Hallocoglu (1992) 63 A Crim R 287
- R v JRD [2007] NSWCCA 55
- R v Marston (1993) 60 SASR 320