Citation: R v Bell [2014] NSWDC 299
Court: District Court of New South Wales
Date: 24 October 2014
Judge: Neilson DCJ
Background
The offender had been sentenced on 29 October 2012 to two years' imprisonment for robbery, with that sentence suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 and subject to a good behaviour bond. In December 2013, while still on that bond, he committed further offences: intimidating a family member with intent to cause fear of physical or mental harm, resisting a police officer, and escaping from police custody. Those offences formed the basis for a call-up before the District Court for an alleged breach of the section 12 bond.
Following his arrest on 8 December 2013, the offender spent approximately two months in custody before being granted parole in February 2014. He then entered The Glen, a residential rehabilitation program on the Central Coast, and remained there through the call-up hearing in October 2014. By that point he had completed a 12-week residential program, secured full-time employment at a Bunnings store, and was making plans to relocate his young and growing family to the Central Coast.
The proceedings before Neilson DCJ involved both an appeal concerning the Local Court sentence imposed for the December 2013 offences and a determination of what action to take on the section 12 bond breach.
Legal Issues
- Whether the offender's commission of further offences constituted a breach of the section 12 good behaviour bond
- Whether the breach was "trivial in nature" within the meaning of section 98(3)(a) of the Crimes (Sentencing Procedure) Act 1999
- Whether there were "good reasons" under section 98(3)(b) to excuse the offender's failure to comply with the bond's conditions, including whether subjective circumstances and the consequences of revocation could constitute such reasons
- What orders should follow if the bond were revoked, including the application of section 24 and Part 4 of the Crimes (Sentencing Procedure) Act 1999 to the setting of any non-parole period
Decision
Neilson DCJ first dealt with the appeal from the Local Court sentence, finding that the section 9 bond imposed by Magistrate Walsh ought to have included a supervision condition by Community Corrections. Having given the offender a Parker warning (a procedural step alerting an offender that an appeal may result in a heavier sentence), and with no objection raised, the District Court allowed the appeal and added a supervision requirement to the existing bond.
On the section 12 call-up, the Court accepted that the further offences committed in December 2013 were not trivial and therefore could not be excused on that basis. The central question was whether "good reasons" existed under section 98(3)(b) to excuse the failure to comply. Neilson DCJ found that they did, having regard to the offender's substantial rehabilitation since the breach: completion of a residential drug and alcohol program, consistent engagement with ongoing treatment, obtaining full-time employment, and concrete plans to relocate his family to a new environment away from influences associated with his offending.
The Court also addressed the position that would arise if that finding were wrong. Under section 99(1)(c), revocation of a section 12 bond triggers the provisions of Part 4 and section 24 of the Act. Section 24(b) requires a sentencing court to take into account the fact that the offender has been subject to such a bond and anything done in compliance with it. Applying those provisions, and noting that the section 12 bond was due to expire in just five days, Neilson DCJ indicated that any non-parole period imposed on revocation would extend only to the rising of the Court, effectively resulting in immediate release.
The Court's primary finding remained that good reasons existed to excuse the breach, and the offender was discharged accordingly.
Orders Made
- Appeal from Local Court sentence allowed; a supervision condition by Community Corrections added to the existing section 9 good behaviour bond for 18 months
- Good reasons found under section 98(3)(b) to excuse the offender's failure to comply with the section 12 bond
- Offender discharged without revocation of the section 12 bond
Key Takeaways
- Under section 98(3) of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a section 12 suspended sentence bond unless the breach was trivial or "good reasons" exist to excuse non-compliance; the commission of further criminal offences is unlikely to be treated as trivial.
- The District Court held that genuine and substantial post-breach rehabilitation, including completion of a residential program, full-time employment, and demonstrated insight into offending behaviour, can constitute "good reasons" within the meaning of section 98(3)(b).
- Where a section 12 bond is revoked, section 24(b) requires the sentencing court to account for the offender's period under the bond and anything done in compliance with it when setting a non-parole period under Part 4, a consideration that can materially affect the sentence that follows.
- Proximity of the bond's expiry date was a relevant practical consideration in assessing the consequences of revocation, with Neilson DCJ noting that any non-parole period would in the circumstances have extended only to the rising of the Court.
- A Parker warning must be given before a court on appeal imposes a more onerous sentence than that under review, giving the offender the opportunity to withdraw from or accept the consequences of the appeal proceeding.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 24, 44-63, 92, 98, 99
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Cases
- Director of Public Prosecutions v Burrow [2004] NSWSC 433
- DPP (NSW) v Cooke [2007] NSWCA 2
- R v Marston (1993) 60 SASR 320