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Supreme Court 29 February 2008

R v Jukes

[2008] NSWSC 126

HomicideTheft & propertyPublic order & justice offences
CRIMINAL LAW BREACHES OF S 12 GOOD BEHAVIOUR BOND REVOCATION OF S 12 BOND

Citation: R v Jukes [2008] NSWSC 126
Court: Supreme Court of New South Wales
Date: 29 February 2008
Judge(s): Hoeben J

Background

The offender had pleaded guilty to manslaughter and was sentenced in October 2006 to two years' imprisonment, wholly suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999. The suspended sentence came with conditions requiring her to be of good behaviour and to comply with the supervision and directions of the Probation and Parole Service, including attending counselling for substance abuse and mental health issues.

The offender breached those conditions in multiple ways. On Christmas Eve 2006, she and a then-partner broke into her grandmother's home and stole jewellery to fund an amphetamine addiction. She was subsequently charged, pleaded guilty, and was sentenced by the Tamworth Local Court in November 2007 to periodic detention for that offence. The Probation and Parole Service also reported that she had repeatedly failed to attend required counselling sessions.

The Crown brought proceedings to revoke the section 12 bond. At the time of the revocation hearing, the offender was 25 years old, had the care of two young children, and was approximately four and a half months pregnant.

  • Whether the offender's breaches of her section 12 good behaviour bond warranted revocation under section 98(3) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the reasons offered for the breaches (amphetamine addiction and difficulty attending counselling) constituted "good reasons" to excuse compliance failures under section 98(3)(b)
  • Whether the offender's pregnancy could be taken into account as a good reason to excuse the breaches, or otherwise as a basis for avoiding activation of the suspended sentence
  • Whether special circumstances existed to justify adjusting the balance between the non-parole period and the parole period

Decision

Hoeben J found that the breaches were plainly not trivial, and that neither the offender's amphetamine addiction nor her longstanding difficulty with counselling constituted "good reasons" within the meaning of section 98(3)(b). The court was therefore required to revoke the bond. Relying on DPP v Burrow and DPP v Cooke, his Honour emphasised that subjective circumstances at the time of breach proceedings are generally irrelevant to the question of whether good reasons exist to excuse the breach itself.

The offender's pregnancy could not be treated as a good reason to excuse the breaches. Hoeben J applied the reasoning from Cooke, where Howie J had confirmed that subjective features of an offender at the time of breach proceedings do not bear on whether good reasons exist under section 98(3)(b), though they may be relevant to what orders are ultimately made after revocation.

The court gave weight to the principle, drawn from South Australian authorities and endorsed in Cooke, that courts must be rigorous in revoking suspended sentences upon clear breach. Treating the bond as effectively unenforceable would undermine both the integrity and deterrent effect of the suspended sentence regime.

While the original two-year sentence with a twelve-month non-parole period was reimposed, Hoeben J found that the offender's pregnancy and her need for rehabilitation from amphetamine addiction together constituted special circumstances. Those circumstances justified extending the balance of term to twelve months, resulting in a parole period equal in length to the non-parole period. The sentence was partially concurrent with the periodic detention sentence already running, and was backdated to give credit for 90 days spent in pre-bail custody.

Orders Made

  • The offender was sentenced to imprisonment for 12 months, commencing 29 November 2007 and expiring 28 November 2008, with a balance of term of 12 months expiring 28 November 2009.
  • The earliest date of parole eligibility was set at 28 November 2008.

Key Takeaways

  • Under section 98(3) of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a section 12 good behaviour bond unless the breach was trivial or good reasons exist to excuse it. Neither amphetamine addiction nor difficulties with counselling satisfied the "good reasons" threshold in this case.
  • An offender's pregnancy is not a "good reason" to excuse breaches of a section 12 bond under section 98(3)(b), though it may be relevant to the orders made following revocation.
  • Consistent with DPP v Cooke and DPP v Burrow, subjective circumstances personal to the offender at the time of breach proceedings are generally irrelevant to the threshold question of excusing the breach, but may properly influence the sentencing exercise that follows revocation.
  • Rigorous enforcement of suspended sentence conditions is necessary to preserve the integrity and deterrent value of the suspended sentence regime. Courts that fail to act on clear breaches risk rendering the mechanism a "legal fiction."
  • Pregnancy, combined with a demonstrated need for rehabilitation, can constitute special circumstances justifying an extension of the parole period relative to the non-parole period under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly sections 12, 24, 98(3) and 99(1)(c)

Cases
- DPP v Burrow & Anor [2004] NSWSC 433
- DPP v Cooke & Anor (2007) 168 A Crim R 379
- R v Buckman (1988) 47 SASR 303
- R v Marston (1993) 60 SASR 320