Citation: BOND, William v R [2008] NSWDC 387
Court: District Court of New South Wales
Date: 13 February 2008
Judge(s): Cogswell SC DCJ
Background
The appellant was a young man (then aged 20) who appealed against sentences imposed by a Local Court magistrate on 12 October 2007. He had been convicted of assault occasioning actual bodily harm, maliciously damaging property, and was also subject to a revocation of Community Service Orders arising from earlier offences.
The assault conviction arose from an incident on 25 August 2006, in which the appellant repeatedly struck his partner with a shoe, punched her in the mouth, and kicked her in the ribs, causing visible swelling and redness. The property damage offence involved the appellant kicking a glass panel at a hotel after being asked to leave. The Community Service Orders he had failed to complete related to an earlier assault and affray from March 2006.
The magistrate had imposed a total effective sentence of eight months' imprisonment with a two-month non-parole period. On appeal, the appellant sought to have the custodial component suspended and replaced with conditions oriented toward rehabilitation, principally through attendance at Oolong House, a residential drug and alcohol rehabilitation facility.
Legal Issues
- Whether the magistrate's sentence should be set aside under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001
- Whether the sentences of imprisonment should be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 in favour of a good behaviour bond with rehabilitation conditions
- How to balance the seriousness of domestic violence offending against the prospect of rehabilitation for a young offender
Decision
Cogswell SC DCJ accepted the submission that the head sentence of eight months' imprisonment should remain but that its execution should be suspended in full. The court acknowledged the gravity of the assault, describing it as "a very nasty and vicious assault on a woman," and emphasised that such conduct must be clearly denounced. However, it weighed this against evidence that the appellant had voluntarily undergone an assessment at Oolong House, had been placed on a waiting list for a residential bed, and had expressed a desire to change his life for his daughter's sake.
The court was candid that suspending the sentence involved the community bearing real risk, noting the appellant could leave or be dismissed from the rehabilitation program at any time. His partner, in particular, was identified as potentially bearing that risk. The court nonetheless concluded that, given the appellant's relatively limited serious criminal history and his demonstrated steps toward rehabilitation, a period of suspended imprisonment with structured supervision offered better prospects for long-term change than two months of full-time custody.
For the property damage offence and the Community Service Order revocation, the court declined to impose imprisonment and instead directed the appellant to enter into good behaviour bonds on the same conditions as the primary bond. All three bonds were to run concurrently for eight months.
Orders Made
- The magistrate's sentence was set aside under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001
- An eight-month sentence of imprisonment was imposed for assault occasioning actual bodily harm, but execution was suspended for the full eight months under s 12 of the Crimes (Sentencing Procedure) Act 1999, conditional on the appellant entering into a good behaviour bond
- Bond conditions included: accepting a bed at Oolong House if offered; complying with Probation and Parole Service directions, including on domestic violence rehabilitation; reporting to the Probation and Parole Service office at Batemans Bay by 20 February 2008
- For maliciously damaging property: a good behaviour bond of eight months on the same conditions, in lieu of imprisonment
- For the Community Service Order revocation: a further good behaviour bond of eight months under s 9 of the Crimes (Sentencing Procedure) Act 1999 on the same conditions
Key Takeaways
- In allowing the appeal, the District Court substituted suspended sentences for full-time custody where a young offender had taken concrete steps toward alcohol rehabilitation and expressed genuine motivation to change, notwithstanding a pattern of alcohol-fuelled violence.
- The seriousness of domestic violence offending was expressly acknowledged: the court did not treat suspension as a minimisation of the conduct but as a calculated judgment about long-term outcomes weighed against denunciation.
- Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend the execution of the whole of a sentence of imprisonment and attach conditions to the resulting good behaviour bond, including rehabilitation participation requirements.
- A finding that an offender is unsuitable for a Periodic Detention Order does not preclude suspension of a sentence where other rehabilitative structures, such as a residential program, are available and the offender has actively engaged with the assessment process.
- Acceptance of a rehabilitation placement as a bond condition carries significant consequences: breach of a suspended sentence bond exposes an offender to serving the balance of the original custodial term in full.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
Cases cited: None cited in the judgment.