Citation: MULDOON, Mark Laurence v R [2010] NSWDC 311
Court: District Court of New South Wales
Date: 13 August 2010
Judge(s): Cogswell SC DCJ
Background
The appellant had been sentenced by magistrates for two separate offences arising from incidents in Portland involving the same victim. The first offence was wilful damage to property under s 195(1)(a) of the Crimes Act 1900, committed in December 2008 when the appellant, while drunk, kicked in a shop window belonging to a man who had earlier refused to lend him money. The second offence, committed approximately seven months later in July 2009, was stalking or intimidating under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The appellant confronted the same shopkeeper in an aggressive, face-to-face manner and made threats, notably while already on a charge for the earlier offence and while that shopkeeper was a prospective witness.
For the property damage offence the magistrate imposed a six-month suspended sentence, and for the intimidation offence an eight-month suspended sentence, both suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The appellant appealed to the District Court, seeking conversion of both suspended sentences to community service orders.
The Crown did not oppose the appeal entirely but argued that at least one sentence should remain suspended because the appellant required structured supervision to address his significant alcohol dependency.
Legal Issues
- Whether the two suspended prison sentences should be re-sentenced as community service orders under s 9 of the Crimes (Sentencing Procedure) Act 1999
- Whether the nature of the offences and the appellant's personal circumstances, including his alcohol dependency and prior criminal history, made a community service order appropriate
- Whether the risk of full-time custody upon any breach of a suspended sentence bond was a relevant consideration favouring re-sentencing
Decision
Cogswell SC DCJ allowed the appeal and re-sentenced the appellant on both matters. His Honour observed that a sentence suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 remains, in character, a prison sentence. Given that the appellant had received multiple bonds but only one prior community service order, the sentencing history had not yet exhausted the community-based options available before full-time custody.
His Honour found the appellant to be an impressive young man who, when sober, made genuine contributions to his community and performed well under supervision. The pre-sentence report, the appellant's evidence, and character references collectively supported rehabilitation prospects. His Honour acknowledged, however, that the case was not straightforward given the nature of the two offences, particularly the intimidation of a witness while facing a pending charge.
The court resolved the tension between rehabilitation and supervision by combining a 200-hour community service order with a two-year good behaviour bond for each offence. Conditions attached to the bond required the appellant to engage with the Probation and Parole Service and to undertake alcohol counselling, random breath testing, anger management, and employment or educational programs as directed. His Honour noted that any future breach of the bond would leave very few options other than a custodial sentence.
Before concluding, the Crown Prosecutor raised a "Parker warning," a procedural step to ensure the appellant understood that a community service order could be viewed by some as more onerous than a suspended sentence, meaning the appeal outcome could technically be regarded as worse than the original sentence. The appellant, through his solicitor, confirmed he wished to proceed.
Orders Made
- Appeal allowed
- For the damage to property offence: suspended sentence set aside; two-year good behaviour bond imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions including engagement with Probation and Parole, alcohol counselling and treatment, random breath testing, anger management referral, and employment or educational training
- For the stalking or intimidation offence: suspended sentence set aside; 200-hour community service order imposed, with conditions on the same terms as the bond
Key Takeaways
- The District Court confirmed that a sentence suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 retains its character as a prison sentence, a factor relevant to determining whether a less restrictive community-based order remains available in the sentencing hierarchy.
- Where a defendant's criminal record showed multiple bonds but only one prior community service order, the sentencing court considered the community service option not yet exhausted, even for offences of some seriousness.
- A combination of a community service order and a good behaviour bond with detailed supervision conditions was available as a sentencing outcome that addressed both rehabilitation and structured oversight of an offender's alcohol dependency.
- The "Parker warning" procedure requires a court to inform an appellant that a sentence imposed on appeal could be regarded as more onerous than the original sentence, even where it appears more favourable in practical terms, and to confirm the appellant's wish to proceed.
- Strong community ties, evidence of genuine rehabilitation efforts, and positive personal character, when supported by a pre-sentence report and references, were factors the District Court weighed in favour of a community-based sentence over continuation of a suspended term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 195(1)(a) (damaging property)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (stalking or intimidating)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 (good behaviour bond), 12 (suspended sentence)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2) (determination of sentence appeal)
Cases: No cases were cited in the judgment.