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District Court 28 November 2008

GREEN, Brett John v R

[2008] NSWDC 378

Domestic & family violencePublic order & justice offences
CRIMINAL LAW BREACH OF S 12 BOND S 12 BOND IMPOSED ON ORIGINAL OFFENCE REASONS FOR FRESH CHARGE NOT RELEVANT FACTS OF NON COMPLIANCE NOT RELEVANT

Citation: GREEN, Brett John v R [2008] NSWDC 378
Court: District Court of New South Wales
Date: 28 November 2008
Judge(s): Cogswell SC DCJ

Background

The appellant was a 25-year-old man who had originally been convicted of driving whilst disqualified. In August 2008, a Local Court magistrate revoked his community service order and imposed a three-month sentence of imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, creating a good behaviour bond.

Just over a month later, on 28 September 2008, the appellant attended his partner's home after an overnight drinking session. He found his belongings packed on the front porch, an argument followed, and he smashed a front window. He was arrested, charged with intentionally or recklessly destroying or damaging property under s 195(1)(a) of the Crimes Act 1900, and pleaded guilty. The offence was recorded as domestic violence related.

The Local Court magistrate revoked the s 12 bond and ordered the appellant to serve the three-month suspended sentence. He lodged a notice of appeal to the District Court, seeking to have the revocation set aside.

  • Whether the appellant's failure to comply with the conditions of his s 12 good behaviour bond was "trivial in nature" under s 98(3)(a) of the Crimes (Sentencing Procedure) Act 1999
  • Whether there were "good reasons" to excuse the failure to comply with the bond
  • What facts are relevant when assessing whether non-compliance with a bond is trivial: specifically, whether the court should take into account the police decision to charge and the conditions subsequently imposed by the sentencing magistrate, or focus only on the underlying facts of the non-compliance itself
  • Whether the revocation of a good behaviour bond and consequential order fell within the definition of "sentence" for the purpose of an appeal under the Crimes (Appeal and Review) Act 2001

Decision

The District Court found no good reason to excuse the non-compliance. The only possible explanation was that the appellant had been drinking, but intoxication does not amount to a good reason to excuse a breach of a bond condition.

On the question of triviality, the court held that the correct focus is on the raw facts of the non-compliance, not on the responses of third parties such as the police or the magistrate who dealt with the breach offence. The court declined to treat the conditions imposed on the appellant as a result of the property damage charge (including a no-contact condition) as aggravating the original non-compliance, because those conditions reflected decisions made by other people about which the court had limited information.

Applying that approach, the court assessed what was actually known: a window was smashed, the appellant immediately acknowledged responsibility and offered to pay for it, and the victim did not provide a statement. The facts contained no detail about the severity of the damage or any direct threat to the victim. Although the court considered it likely that the victim had been frightened, it found that the failure to comply was trivial in nature, within the meaning of s 98(3)(a).

Accordingly, the court set aside the magistrate's sentence, declined to revoke the bond, took no action in respect of the breach, and ordered the appellant's release from custody.

Orders Made

  • The magistrate's sentence (including the revocation of the s 12 bond) was set aside
  • No action was taken in respect of the appellant's failure to comply with the conditions of the good behaviour bond
  • The appellant was to be released from custody

Key Takeaways

  • Under s 98(3) of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a s 12 bond unless it is satisfied either that the failure to comply was trivial in nature, or that there are good reasons excusing non-compliance; both limbs must be considered separately.
  • When assessing triviality under s 98(3)(a), the District Court held that attention must be directed to the facts constituting the non-compliance itself, not to the decisions of police to charge or of a magistrate to impose particular conditions as a result of that conduct.
  • A domestic violence context does not automatically preclude a finding of triviality, but the court acknowledged the serious weight that context carries and described the finding as a difficult one.
  • Intoxication at the time of the breach does not constitute a "good reason" to excuse a failure to comply with a good behaviour bond condition.
  • For the purpose of an appeal under the Crimes (Appeal and Review) Act 2001, "sentence" is defined broadly enough to include both the revocation of a good behaviour bond and any order made as a consequence of that revocation, such as the activation of a suspended term of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 195(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW) s 20(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 12, 98(3)(a)

Cases cited: No cases were cited in the judgment.