Citation: R v Steven Wayne Kirby [2009] NSWDC 401
Court: District Court of New South Wales
Date: 11 December 2009
Judge(s): Cogswell SC DCJ
Background
In February 2007, Judge O'Connor QC sentenced the offender on four groups of break and enter offences, imposing terms of imprisonment ranging from 12 to 24 months. In each case, those terms were suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999, with the offender serving the sentences in the community subject to good behaviour conditions.
Between November 2007 and November 2008, the offender committed three further offences: drug-related offences, a domestic violence assault, and property damage. Each new offence gave rise to a separate bond under section 9 of the same Act, and each constituted a breach of the suspended sentence conditions.
The matter came before Cogswell SC DCJ for determination of the bond breaches and resentencing. By the time of the breach hearing, the offender had relocated to South Australia, where he was arrested on 27 November 2009 and extradited to New South Wales.
Legal Issues
- Whether the court was satisfied that the offender had failed to comply with the conditions of the good behaviour bonds, thereby triggering revocation under section 98 of the Crimes (Sentencing Procedure) Act 1999
- Whether a period of 88 days spent in pre-sentence custody (before Judge O'Connor's original sentence) should be credited again when imposing the revoked sentences
- Whether special circumstances existed to justify altering the standard proportion between the non-parole period and the balance of term, given the offender's borderline mental capacity and age
Decision
Cogswell SC DCJ was satisfied that the offender had breached the conditions of all bonds by failing to be of good behaviour. Defence counsel did not submit that the breaches were trivial or excusable. The court accordingly revoked all bonds under section 98(2)(c), causing the suspended sentence orders to cease to have effect.
On the question of the 88-day pre-sentence custody period, the court accepted the prosecution's submission that no further allowance should be made. Judge O'Connor had already taken that period expressly into account when originally deciding to suspend the sentences. To credit it again would result in double-counting.
The court accepted the defence submission that the offender's borderline mental capacity justified a finding of special circumstances. The judge distinguished the role that mental capacity plays in fixing the non-parole to balance-of-term ratio from its role in moderating general deterrence, which Judge O'Connor had already addressed. The offender's age (20 years old) and his first time in custody also supported a longer parole period.
Partial accumulation and partial concurrency were applied across the original sentences. The court imposed an overall sentence of three years and four months, with a non-parole period of two years commencing 27 November 2009.
Orders Made
- All bonds imposed under section 12 of the Crimes (Sentencing Procedure) Act 1999 were revoked
- An aggregate sentence of 3 years and 4 months imprisonment was imposed
- Non-parole period of 2 years, commencing 27 November 2009, expiring 26 November 2011
- Balance of term of 16 months, commencing 27 November 2011, expiring 26 March 2013
- Special circumstances found, extending the balance of term beyond the standard one-third proportion
Key Takeaways
- Under section 98 of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a section 12 suspended sentence bond where the breach is neither trivial nor excusable, and the offender bears the burden of demonstrating otherwise.
- Where a sentencing judge has already credited pre-sentence custody as a reason for suspending a sentence, that same custody period should not be credited a second time when the suspended sentence is later activated on breach.
- An offender's borderline mental capacity serves a distinct sentencing function when fixing the non-parole period to balance-of-term ratio, separate from its relevance to general deterrence, and can support a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999.
- First-time imprisonment and youth are recognised mitigating considerations when determining the appropriate proportion between custodial and supervisory phases of a sentence.
- Partial accumulation and partial concurrency may be applied when activating multiple suspended sentences arising from different groups of offences, to achieve an overall sentence proportionate to the totality of the offending.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW): sections 9, 12, 24, 32, 44, 98, 99
- Crimes Act 1900 (NSW): sections 112(2), 113(1)
Cases: No cases were cited in the judgment text.