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District Court 3 December 2009

R v James Mervyn HILLHOUSE

[2009] NSWDC 427

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW JUDGMENT SENTENCE APPEAL APPEAL AGAINST REVOCATION OF S 12 BONDS WHETHER NECESSITY OR URGENCY REQUIRED RELEVANCE OF 5A AUTHORITIES

Citation: R v James Mervyn Hillhouse [2009] NSWDC 427
Court: District Court of New South Wales
Date: 3 December 2009
Judge(s): Cogswell SC DCJ

Background

The appellant was an offender who had accumulated several suspended sentences accompanied by good behaviour bonds under s 12 of the Crimes (Sentencing Procedure) Act 1999. Those sentences, ranging from seven to nine months imprisonment, arose from offences of driving whilst disqualified, reckless damage to property, and assault, all committed in late 2008 and early 2009 at Broken Hill.

In September 2009, police intercepted the appellant driving slowly along the street where he lived, at around 7:30 pm. He returned a blood alcohol reading of 0.105 and had no licence, having been disqualified. He was charged with mid-range prescribed concentration of alcohol (PCA) and driving whilst disqualified.

Magistrate Dunlevy at Broken Hill Local Court revoked all four good behaviour bonds, activating the suspended sentences. The appellant appealed to the District Court, seeking to have the bonds reinstated on the basis that good reasons existed to excuse the breach.

  • Whether s 98(3) of the Crimes (Sentencing Procedure) Act 1999 required revocation of the good behaviour bonds, or whether "good reasons" existed to excuse the appellant's failure to comply.
  • What standard of conduct or circumstance qualifies as "good reasons" under s 98(3)(b), particularly where a breach involves a further offence rather than mere non-compliance.
  • Whether the appellant's explanation, that he drove a short distance to move his wife's car into the garage for safekeeping after a neighbour dispute, met that standard.

Decision

The District Court considered the appellant's explanation carefully. The appellant and his brother-in-law had been cleaning out the garage and had consumed a few beers. The appellant moved the car a short distance from outside the garage to the median strip, apparently to protect it from a neighbour he feared might damage it. He acknowledged he had no licence.

Drawing on the Court of Appeal's reasoning in Director of Public Prosecutions v Cooke (2007), the District Court applied the principle that the relevant inquiry is whether the conduct constituting the breach amounted to a "contumelious act of defiance or disregard" of the bond conditions. Howie J in that case had observed that an emergency situation, such as driving under the influence in a genuine emergency, might provide a good reason. The court noted, however, that necessity or urgency is not strictly required; rather, sufficiently extenuating circumstances may be enough.

The District Court found that although the appellant's conduct was foolish, it did not represent a deliberate or defiant disregard of his bond obligations. Moving a car a short distance in a residential street, after a few beers, to protect a family member's vehicle from anticipated damage, was characterised as stupid behaviour rather than contumelious conduct. On that basis, the court was satisfied that good reasons existed to excuse the breach.

Accordingly, the District Court set aside the magistrate's revocation orders and resentenced the appellant on the fresh driving offences. The existing bonds were not reactivated. Instead, the appellant was placed on a new 12-month good behaviour bond under s 9 (that is, without an accompanying sentence of imprisonment) for the new driving offences, with disqualification periods of 12 months for the PCA offence and two years for driving whilst disqualified, both cumulative on any earlier disqualification periods.

Orders Made

  • Revocation orders made by the magistrate were set aside.
  • Sentences imposed by the magistrate on appeal were set aside.
  • The appellant was sentenced for the mid-range PCA and driving whilst disqualified offences to a 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions of good behaviour, notification of change of address, and appearance if called upon.
  • Disqualification of 12 months for the mid-range PCA offence.
  • Disqualification of 2 years for driving whilst disqualified.
  • Both disqualification periods to be cumulative on any earlier periods of disqualification.

Key Takeaways

  • Under s 98(3) of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a s 12 good behaviour bond (one attached to a suspended sentence) unless the breach was trivial, or good reasons exist to excuse it. The threshold is meaningful but not insurmountable.
  • Where the breach consists of a further offence rather than simple non-compliance, the relevant question is whether the conduct amounted to a contumelious act of defiance or disregard of the bond, following the Court of Appeal's reasoning in DPP v Cooke.
  • Necessity or emergency is not a strict prerequisite for "good reasons" to exist; sufficiently extenuating circumstances surrounding the offending conduct may satisfy the test.
  • The District Court drew a distinction between conduct that is simply foolish or ill-considered and conduct that reflects deliberate disregard for bond obligations. Driving a short distance to move a car for safekeeping, after consuming a few beers, fell on the "stupid but not defiant" side of that line.
  • On a sentence appeal from the Local Court, the District Court hears the matter afresh and exercises its own sentencing discretion, rather than reviewing the magistrate's decision for error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 98(3)

Cases:
- Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379 (NSW Court of Appeal)
- Director of Public Prosecutions v Burrow [2004] NSWSC 433
- R v Marston (1993) 60 SASR 320 (South Australian Supreme Court)