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District Court 20 December 2011

R v Mark YOUNIS

[2011] NSWDC 229

Public order & justice offences
CRIMINAL LAW PROCEDURE ADJOURNMENT

Citation: R v Mark Younis [2011] NSWDC 229
Court: District Court of New South Wales
Date: 20 December 2011
Judge(s): Cogswell SC DCJ

Background

In 2008, the District Court sentenced the defendant to a term of imprisonment, which was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, alongside a good behaviour bond. In early 2011, the Court received notification that the defendant had allegedly breached that bond through conduct occurring in 2009, and directed that he appear before it for determination of the breach.

The complication arose from parallel Local Court proceedings concerning the same 2009 conduct. The defendant had initially pleaded guilty in the Local Court, prompting the breach notice, but subsequently applied to withdraw that plea. Following a series of administrative errors and misunderstandings, the Local Court record came to reflect a plea of not guilty, and those charges remained unresolved at the time of this application.

The prosecution urged the District Court to proceed immediately to determine the breach, while the defendant's solicitor argued that doing so before the Local Court resolved the underlying charges risked producing inconsistent judicial findings and potential injustice to the defendant.

  • Whether the District Court should proceed to determine the alleged breach of a good behaviour bond under s 98 of the Crimes (Sentencing Procedure) Act 1999 while related criminal charges remained unresolved in the Local Court.
  • Whether the existence of a not-guilty plea in the Local Court was a relevant consideration in the exercise of the District Court's discretion to proceed.
  • Whether proceeding risked producing two inconsistent findings across two separate jurisdictions regarding the same underlying conduct.
  • Whether any estoppel might arise from a District Court determination made prior to the Local Court's resolution of the charges.

Decision

The prosecution submitted that the District Court had power under s 98 of the Crimes (Sentencing Procedure) Act 1999 to determine independently whether the defendant had failed to comply with the bond, potentially applying a standard of beyond reasonable doubt (though that standard has not been definitively settled). The Court acknowledged this power but treated the central question as one of discretion rather than jurisdiction.

The defendant's solicitor advanced three principal arguments for adjournment. First, the breach notice had been triggered by a guilty plea that no longer appeared on the Local Court record, making it inappropriate to proceed on a trigger that the record now contradicted. Second, proceeding risked producing two inconsistent findings: the District Court might be satisfied of non-compliance while a Local Court magistrate might subsequently acquit the defendant of the very same conduct, resulting in imprisonment on the basis of conduct later found not proven. Third, the potential for an estoppel arising from any District Court determination had not yet been examined. The defendant's mental health, which had been raised in evidence on previous occasions, was also noted as a relevant consideration.

His Honour acknowledged the general undesirability of leaving breach proceedings unresolved for extended periods, noting that offenders serving suspended sentences and the community are both poorly served by prolonged uncertainty. Nevertheless, the risk of inconsistent determinations across two jurisdictions, combined with the unresolved state of the Local Court proceedings, persuaded his Honour to exercise his discretion in favour of adjournment.

The Court also suggested, without directing, that the Office of the Director of Public Prosecutions might consider exercising its power under the Director of Public Prosecutions Act 1986 to take over the Local Court prosecution. This would allow a single prosecutor to manage both proceedings with full awareness of the connection between them, and to press the Local Court for an expedited hearing.

Orders Made

• The proceedings brought by the Director of Public Prosecutions for resolution of the question of non-compliance with a good behaviour bond are adjourned on Mr Sandroussi's application.

Key Takeaways

  • The District Court confirmed it has a discretion under s 98 of the Crimes (Sentencing Procedure) Act 1999 to adjourn breach-of-bond proceedings where unresolved criminal charges in another jurisdiction concern the same underlying conduct.
  • A real risk of inconsistent findings across two courts constituted a significant factor in the exercise of that discretion, particularly where the inconsistency could result in imprisonment later undermined by an acquittal.
  • The fact that the Local Court record reflected a not-guilty plea, reversing the guilty plea that had originally triggered the breach notice, weighed in favour of deferring the District Court's determination.
  • Breach proceedings under s 12 suspended sentences should ordinarily be resolved promptly, as both the offender and the community have a legitimate interest in avoiding prolonged uncertainty about whether a custodial sentence will be activated.
  • Where a defendant facing breach proceedings has also been charged in the Local Court, R v Nicholson [2010] NSWCCA 80 indicates the preferable course is for the Local Court to postpone sentencing until the District Court has resolved the breach, allowing the two proceedings to be coordinated.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 98
- Director of Public Prosecutions Act 1986 (NSW)

Cases
- R v Nicholson [2010] NSWCCA 80