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Local Court 1 October 2009

Police V Larkins

[2009] NSWLC 12

Traffic & drivingDomestic & family violence
CRIMINAL LAW SUSPENDED SENTENCE REVOCATION PRINCIPLES

Citation: Police v Larkins [2009] NSWLC 12
Court: Local Court of New South Wales
Date: 10 January 2009
Judge(s): Chief Magistrate G L Henson

Background

The offender was subject to two concurrent bonds imposed on 26 June 2008: a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for common assault, and a s 12 suspended sentence bond of 10 months for a domestic violence offence. Both bonds required supervision by the Probation and Parole Service and participation in drug and alcohol rehabilitation programmes.

On the afternoon of 25 April 2009, just over eight hours before the s 12 bond was due to expire at midnight, the offender was arrested and charged with driving with the middle range prescribed concentration of alcohol. He pleaded guilty. This triggered breach proceedings in relation to both bonds.

The offender had a prior drink-driving conviction from 2004, making this a second offence for licensing disqualification purposes. The central question before the court was whether the suspended 10-month prison sentence should be activated.

  • Whether the offender's breach of the s 12 bond was "trivial" within the meaning of s 98(3)(a) of the Crimes (Sentencing Procedure) Act 1999
  • Whether there were "good reasons" to excuse the breach under s 98(3)(b), given that the bond was mere hours from expiry
  • Whether the proximity of the bond's expiry to the date of the breach was a relevant consideration under s 98(3)(b)
  • Whether the circumstances of the drink-driving offence constituted extenuating circumstances sufficient to excuse non-compliance

Decision

Counsel for the offender conceded, appropriately in the Chief Magistrate's view, that the breach could not be characterised as trivial under s 98(3)(a). A middle-range drink-driving offence by a person with a prior drink-driving conviction did not meet that threshold. The analysis therefore turned entirely on whether good reasons existed under s 98(3)(b) to excuse the failure.

The Chief Magistrate applied the principles from DPP v Cooke & Anor [2007] NSWCA 2, which establish that the inquiry under s 98(3)(b) must focus on the conduct giving rise to the breach, not on the offender's subjective circumstances at the time of the revocation proceedings. Drawing on DPP v Nouata [2009] NSWSC 72, the court held that the near-expiry of the bond was irrelevant. The statute confines the court's discretion to the two grounds in s 98(3)(a) and (b) alone.

The offender's explanation was that his wife had asked him to take over driving, and that his blood alcohol reading reflected alcohol consumed the previous evening and earlier that day. The court rejected both as extenuating circumstances. The first was an explanation, not a justification. The second reflected a well-known pattern of residual blood alcohol from heavy prior-night drinking, which the court declined to treat as mitigating. Neither circumstance approached the kind of emergency scenario discussed in Cooke as potentially sufficient to excuse a breach.

Finding no extenuating circumstances, the court applied the mandatory revocation provisions in s 98(3) and activated the suspended sentence. The court declined to disturb the statutory relationship between the head sentence and the non-parole period under s 44, setting a non-parole period of 7 months and 15 days. It determined that periodic detention was inadequate given the seriousness of the conduct and the offender's need for rehabilitation programmes. The matter was adjourned to assess suitability for home detention.

Orders Made

  • The s 12 good behaviour bond was revoked
  • The offender was ordered to serve the previously suspended term of 10 months imprisonment
  • Non-parole period set at 7 months and 15 days; balance of 2 months and 15 days
  • Proceedings adjourned to 13 November 2009 for a home detention suitability assessment

Key Takeaways

  • Under s 98(3) of the Crimes (Sentencing Procedure) Act 1999, revocation of a s 12 suspended sentence bond is mandatory unless the breach was trivial or good reasons exist to excuse it. The near-expiry of a bond at the time of breach is not a relevant consideration under either limb.
  • The inquiry under s 98(3)(b) concentrates on the conduct causing the breach, not on the offender's personal circumstances at the time of the revocation hearing, as confirmed in DPP v Cooke & Anor [2007] NSWCA 2.
  • Extenuating circumstances capable of excusing a breach must explain the behaviour that gave rise to it. An offender's compliance with a request from a family member to drive, and residual intoxication from prior-night drinking, did not reach that threshold.
  • A middle-range drink-driving offence, particularly by an offender with a prior drink-driving history, cannot be characterised as "trivial" for the purposes of s 98(3)(a).
  • In determining the form of custody after activation of a suspended sentence, full-time custody, periodic detention, and home detention remain options to be weighed; the court treated full-time custody as a measure of last resort and adjourned to assess home detention suitability.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 44, 98, 99, 100
- Road Transport (Safety and Traffic) Management Act 1999 (NSW), s 9(3)
- Road Transport (General) Act 1999 (NSW), s 3
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Cases
- DPP v Cooke & Anor [2007] NSWCA 2
- DPP v Nouata [2009] NSWSC 72
- DPP v Burrow [2004] NSWSC 433
- R v Marston (1993) 60 SASR 320