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10
Court of Criminal Appeal 19 November 2009

Bonsu v R

[2009] NSWCCA 316

Traffic & driving
CRIMINAL LAW SENTENCE BREACH OF COMMUNITY SERVICE ORDER

Citation: Bonsu v R [2009] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 19 November 2009
Judge(s): Howie J

Background

The applicant was originally charged with dangerous driving causing death following an incident in September 2005 in which his vehicle struck and killed a traffic controller. After a judge-alone trial, the trial judge acquitted him of the dangerous driving charge, finding the evidence more consistent with momentary inattention. The applicant was instead dealt with under s 166 of the Criminal Procedure Act 1986 for the related summary offence of negligent driving occasioning death, for which the maximum penalty was 18 months' imprisonment.

The trial judge imposed a community service order of 200 hours. The applicant completed only 11 hours, citing both personal disengagement and medical issues, and the order was ultimately revoked.

The matter was relisted in the District Court before a different judge. The applicant appeared in custody after a bench warrant was issued when he had failed to attend an earlier date. The District Court judge declined to adjourn for an updated report and instead imposed a fixed-term sentence of three months by applying what he understood to be a rule of thumb that 50 hours of community service equates to one month of full-time custody.

  • Whether the District Court judge correctly understood his task on resentencing following revocation of the community service order.
  • Whether the sentencing discretion miscarried by failing to consider the facts of the original offence and the applicant's personal circumstances.
  • What the appropriate sentence was for an offence of negligent driving occasioning death in these circumstances.

Decision

Howie J allowed the appeal. The District Court judge had fundamentally misunderstood the nature of his task. Under s 115(3) of the Crimes (Administration of Sentences) Act 1999, when a community service order is revoked, the court must deal with the offender afresh for the original offence as though the order had never been made. The exercise is a resentencing for that offence, not a mechanical conversion of unperformed community service hours into a period of imprisonment.

The District Court judge had made no inquiry into the facts of the offence, gave no consideration to the applicant's subjective circumstances, and applied an informal rule of thumb calculation that had no proper basis. Howie J described the proceedings as "completely unsatisfactory as a way of determining to take away a citizen's liberty."

On resentencing, Howie J took into account that the applicant was 28 years old, had effectively no criminal history, and that the offence occurred more than four years earlier. The applicant had already served approximately one month in custody as a result of the flawed District Court sentence. Howie J noted that, while he considered the range of sentences being imposed for this offence in the Local Court to be generally inadequate given that a life had been taken, the combination of time already served and the circumstances of this particular case led him to impose a 12-month good behaviour bond.

Howie J was explicit that this outcome should not be taken as indicating that a good behaviour bond is an ordinarily appropriate penalty for negligent driving occasioning death. He described the applicant as having received a very lenient sentence in part as a consequence of the unlawful imprisonment he had already suffered.

Orders Made

  • Appeal allowed.
  • The sentence imposed in the District Court is quashed.
  • In lieu, the applicant is to enter into a good behaviour bond for a period of 12 months, including conditions relating to good behaviour and compliance with traffic laws during any period in which the applicant holds a licence.

Key Takeaways

  • Under s 115(3) of the Crimes (Administration of Sentences) Act 1999, revocation of a community service order requires the court to resentence the offender for the original offence as if the order had never been made. It is not an exercise in converting unperformed hours into a custodial term.
  • A court resentencing after breach must consider both the facts of the underlying offence and the offender's current subjective circumstances. Failure to do so constitutes a miscarriage of the sentencing discretion.
  • The District Court's use of an informal "rule of thumb" (50 hours equalling one month in custody) as the sole basis for imposing full-time imprisonment was held to be legally erroneous and procedurally inadequate.
  • Howie J stated clearly that the lenient outcome in this case reflected the specific procedural history, including unlawful prior imprisonment, and should not be read as establishing an appropriate sentencing range for negligent driving occasioning death.
  • Where a judge-alone trial results in a not-guilty verdict on the primary charge and the offender is sentenced on a back-up summary offence under s 166 of the Criminal Procedure Act 1986, the sentencing judge should provide properly reasoned remarks, given the potential for further proceedings down the track.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c) (dangerous driving causing death)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(1)(a) (negligent driving occasioning death)
- Criminal Procedure Act 1986 (NSW), s 166 (back-up charges and summary offence disposal)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 115 (revocation of community service orders)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A

Cases cited: No cases were cited in the portions of the judgment provided.