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Supreme Court 15 June 2015

R v Deborah Grant

[2015] NSWSC 759

Assault & violenceDomestic & family violence
CRIMINAL LAW BREACH OF BOND WHERE SENTENCE IMMEDIATELY SUSPENDED SENTENCE OF IMPRISONMENT APPROPRIATE

Citation: R v Deborah Grant [2015] NSWSC 759
Court: Supreme Court of New South Wales
Date: 15 June 2015
Judge: Bellew J

Background

In December 2012, Bellew J sentenced the offender for an offence under s 315 of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment. The judge imposed a fixed 12-month term but immediately suspended it, releasing the offender on a bond that required her to be of good behaviour for the duration.

In October 2013, while the bond remained on foot, the offender was involved in a domestic dispute during a child handover. She grabbed the victim's shirt and punched him to the head. The victim was the father of her two children. She was subsequently charged and, in November 2013, pleaded guilty in the Casino Local Court to assault.

That guilty plea constituted a breach of the good behaviour condition of her bond. The offender later attempted to withdraw her guilty plea in the Local Court, and then sought judicial review of the Magistrate's refusal to allow that withdrawal. Both applications failed, and the matter returned to Bellew J to determine what consequences should follow from the breach.

  • Whether the offender's guilty plea to assault during the bond period constituted a breach of the good behaviour condition.
  • Whether, given the breach, the bond should be revoked under s 98 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether a sentence of imprisonment was appropriate, and if so, whether it could properly be served by way of home detention.

Decision

Bellew J found that the guilty plea to assault in the Local Court clearly established a breach of the good behaviour condition. The offender's subsequent attempts to resile from that plea, including the failed application for judicial review, did not alter the position. The judge noted the lengthy procedural history without attributing blame to any party, including the offender, who had been entitled to pursue the avenues she did.

The court determined that revocation of the bond was the appropriate response and that a sentence of imprisonment was warranted. In reaching that conclusion, the judge took into account all relevant sentencing material, including a pre-sentence report that noted the offender showed limited insight into her conduct and sought to minimise her actions.

On the question of how imprisonment should be served, both the Crown and defence counsel agreed it was open to order home detention, subject to a suitability assessment. The judge identified the health needs of the offender's two young children, who suffer from serious medical conditions requiring their mother's care and supervision, as a significant factor favouring the exercise of discretion in that direction. The proceedings were adjourned to allow a home detention suitability assessment to be completed.

Orders Made

  • The bond imposed on 7 December 2012 under s 12 of the Crimes (Sentencing Procedure) Act 1999 was revoked.
  • Pursuant to s 80 of the Crimes (Sentencing Procedure) Act 1999, the offender was referred for assessment as to her suitability to serve the sentence by way of home detention.
  • Bail was granted on the following conditions: to be of good behaviour; to reside at a specified address; and to contact the Probation and Parole Service at Murwillumbah within 72 hours to arrange the home detention assessment.
  • The home detention suitability report was directed to be provided to the judge's associate no later than 22 July 2015.

Key Takeaways

  • A guilty plea entered in a lower court to an offence committed during a good behaviour bond is sufficient to establish a breach of that bond, even where the offender subsequently seeks to withdraw the plea.
  • Revocation of a suspended sentence bond is required where the breach is established and the circumstances do not support leaving the bond in place.
  • Under s 80 of the Crimes (Sentencing Procedure) Act 1999, a court may refer an offender for a home detention suitability assessment before finally determining how an imprisonment sentence is to be served.
  • The health and welfare needs of an offender's dependent children can constitute a significant mitigating factor influencing the mode of custody, even where imprisonment itself is unavoidable.
  • Procedural delays caused by an offender's unsuccessful attempts to challenge a guilty plea do not, in this case, attract adverse findings against the offender when the sentencing court exercises its discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 315
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 80, 98

Cases:
- R v Grant [2012] NSWSC 1491 (original sentencing decision)
- Grant v The Local Court of New South Wales & Anor [2015] NSWSC 356 (judicial review of refusal to withdraw guilty plea)
- Director of Public Prosecutions v Burrow [2004] NSWSC 433
- Director of Public Prosecutions v Cooke & Anor [2007] NSWCA 32; (2007) 168 A Crim R 319
- R v Marston (1993) 60 SASR 320