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District Court 29 September 2010

Binge, Raymond v D.P.P

[2010] NSWDC 288

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW DISTRICT COURT SEVERITY APPEAL SUSPENDED SENTENCE CALL HIGH RANGE PCA INTIMIDATE POLICE ASSAULT POLICE IN EXECUTION OF DUTY

Citation: Binge, Raymond v D.P.P [2010] NSWDC 288
Court: District Court of New South Wales
Date: 29 September 2010
Judge(s): Nicholson SC DCJ

Background

The appellant was a 35-year-old Aboriginal man who had been living in Narrabri after relocating from Moree to make a fresh start. He returned to Moree for a family function and, in the early hours of 13 June 2010, was detected driving with a high range prescribed concentration of alcohol (a breath analysis reading of 0.150g per 100mL). He was the sole occupant of the vehicle, was travelling a short distance, and his driving did not otherwise suggest impairment.

At the time of this offence, the appellant was serving two suspended sentences under section 12 of the Crimes (Sentencing Procedure) Act 1999. Those bonds arose from a January 2009 incident in which he had been drunk, intimidated a police officer, and resisted arrest after officers raised concerns about his young children riding a motorcycle unsafely. The bonds had only three days remaining when the new offence occurred.

The appellant pleaded guilty in the Local Court and was sentenced to nine months imprisonment with a six-month non-parole period, together with a five-year licence disqualification. He appealed the severity of that sentence to the District Court. He also consented to the court calling him up on the bond breach arising from the new conviction.

  • Whether the sentence for high range prescribed concentration of alcohol was manifestly excessive and should be replaced with a suspended sentence under section 12.
  • Whether the five-year disqualification period was appropriate or should be reduced.
  • Whether the appellant had established "good reasons" to excuse his failure to comply with the conditions of his section 12 bonds, so that no action should be taken on the breach.
  • Whether the unavailability of certain sentencing options (periodic detention and home detention) in rural and regional NSW constitutes a form of geographic discrimination relevant to the exercise of sentencing discretion.

Decision

On the driving offence, the District Court accepted that the objective circumstances were at the lower end of seriousness for high range PCA: a short trip, no other traffic, no erratic driving, and the appellant's sole occupancy of the vehicle. The court confirmed the nine-month term of imprisonment but quashed the six-month non-parole period and instead suspended the sentence under section 12, subject to a nine-month good behaviour bond requiring the appellant to abstain from alcohol. The five-year disqualification was quashed and replaced with a twelve-month period.

On the bond breach, the court carefully examined the principles governing revocation of a section 12 bond. Any further offending technically constitutes a failure to comply with the bond's conditions, and the sentencing court must ordinarily revoke the bond unless the offender establishes "good reasons" to excuse the breach. The court identified those good reasons with reference to several factors: the bond had only three days remaining when the offence occurred; the appellant had been offence-free for seventeen months (more than double the bond period); he had genuinely relocated and was rebuilding his life; and the new offence, while serious, was at the lower end of its range.

Significantly, the court addressed the absence of periodic detention and home detention as sentencing options in Moree and Narrabri. It found that the unavailability of those more therapeutic and community-oriented alternatives in rural and regional NSW meant that the only real sentencing option upon revocation would have been full-time imprisonment. The court held that this geographic inequality constituted a relevant factor capable of supporting "good reasons" in the interests of justice not to revoke the bonds. The Crown did not seek to resist that course when given the opportunity to do so.

Taking all of those matters together, the court was satisfied that good reasons existed and declined to take any action on the breach of the section 12 bonds.

Orders Made

  • Conviction for high range PCA confirmed.
  • Nine-month term of imprisonment confirmed; six-month non-parole period quashed.
  • Operation of the sentence suspended under section 12, conditional on the appellant being of good behaviour and abstaining from alcohol for nine months.
  • Court directed to be notified within 48 hours of any arrest involving alcohol during the bond period; copy of bond to be served on the officer in charge of Narrabri Police Station.
  • Five-year disqualification quashed; disqualification of twelve months substituted, running from the date of licence suspension.
  • No action taken on the breach of the two section 12 bonds.

Key Takeaways

  • The District Court held that the unavailability of periodic detention and home detention in rural and regional NSW is a legitimate sentencing consideration, capable of constituting or contributing to "good reasons" in the interests of justice not to revoke a section 12 bond upon breach.
  • Geographic location can give rise to an effective inequality in access to the full range of sentencing options, and that inequality may result in disproportionately harsh outcomes for offenders in rural and regional areas if it is not taken into account.
  • Under the section 12 framework, an offender who commits a further offence during a bond bears the onus of establishing "good reasons" to excuse the non-compliance. The proximity of the breach to the bond's expiry date, a substantial period of prior compliance, and genuine rehabilitation efforts are all relevant to that assessment.
  • Confirming the sentence imposed below does not preclude the appellate court from restructuring the non-parole period or the form of the sentence, including by substituting a suspended sentence for a period of actual custody.
  • In assessing the objective seriousness of an assault on a police officer, the nature of the duty being performed at the time is relevant: an officer engaged in preventative welfare-focused communication with a parent occupies a different position on the spectrum of seriousness than one investigating or arresting for serious crime.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly section 12 (suspended sentences)

Cases
- The DPP v Burrows & Anor [2004] NSWSC 433
- The DPP v Cooke & Anor [2007] NSWCA 2
- R v Mark John Doyle, NSWCCA, unreported, 7 March 1996