Citation: R v Mohamed [2019] NSWDC 372
Court: District Court of New South Wales
Date: 15 July 2019
Judge: Montgomery DCJ
Background
The offender had been sentenced on 8 March 2018 for being an accessory after the fact to demanding money with menaces, an offence under s 350 of the Crimes Act 1900 (NSW). Montgomery DCJ had assessed the offending as falling in the lower range of objective seriousness. Because no community service work was locally available at the time, the court imposed a ten-month term of imprisonment suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), with the offender entering a ten-month good behaviour bond that required him to accept supervision by Community Corrective Services.
Shortly after sentencing, the offender collected his passport from police, indicated he intended to travel overseas, and departed Australia for Egypt on 1 April 2018. He remained there for approximately 12 months, returning on 29 March 2019. In his absence, he never reported to Community Corrections, a warrant was issued for breach of bond, and the ten-month bond period expired while he was abroad.
On his return, the offender attended a police station to recover property and was arrested on the warrant. He spent one night in custody before being granted bail, with which he remained compliant for approximately three and a half months before the breach proceedings were heard.
Legal Issues
- Whether the breach of the good behaviour bond was sufficiently serious to warrant revocation under s 98(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the offender's claimed misunderstanding of the bond conditions, including the supervision requirement and prohibition on travel, provided good reason to excuse the breach
- What the appropriate re-sentence should be, including whether an Intensive Corrections Order (ICO) was available and suitable given the offender's stated intention to remain in Australia
Decision
Montgomery DCJ found the breach was neither trivial nor supported by good reason. The offender argued through an interpreter that he had not understood the supervision requirement or the prohibition on leaving the jurisdiction. However, the court noted that the offender had conceded in cross-examination that he understood the ten-month sentence would expire while he was overseas, and that he had not sought advice from anyone to confirm that travelling was permissible. Obtaining his passport and departing the country for the duration of the sentence was, in the court's view, directly contrary to the supervision obligation the offender claimed not to have understood.
The court also took into account the offender's prior conduct: he had previously misled police about his address and had been intercepted at Sydney International Airport in 2015 when attempting to leave the country. Against this background, the court concluded that the breach reflected a failure to apply the respect for court orders that the community is entitled to expect, regardless of English language ability. The bond was revoked under s 98(3).
On re-sentencing, the court accepted that the offender intended to remain within the jurisdiction, which was a threshold requirement for an ICO under s 69 of the Crimes (Sentencing Procedure) Act. A sentencing assessment report rated the offender as a low risk of reoffending and suitable for community service work. The original ten-month term was reduced to seven months to give credit for three and a half months of bail compliance, the one night in custody, and time already subject to the bond. The sentence was directed to be served by way of an ICO, with community service work included as a condition, as the court had originally intended in March 2018.
Orders Made
- The offender sentenced to seven months imprisonment, directed to be served by way of an Intensive Corrections Order commencing 15 July 2019
- Community service work condition: 100 hours at a minimum rate of 20 hours per month, as directed by Community Corrections
- Prohibition on visiting points of departure from Australia, including international airport terminals
- Passport to remain surrendered to NSW Police Force for the duration of the sentence
- Submission to supervision by Community Corrections for as long as that service considers appropriate
- Reporting to Parramatta Corrections Office on 16 July 2019 at 10:00am
Key Takeaways
- An offender's claimed misunderstanding of bond conditions will not automatically excuse a breach where the surrounding conduct suggests awareness of the relevant constraints and no effort was made to seek clarification.
- Under s 69 of the Crimes (Sentencing Procedure) Act 1999 (NSW), an Intensive Corrections Order is only available where the offender intends to remain within the jurisdiction; the court will assess this requirement at the time of re-sentencing.
- Where community service work was unavailable at original sentencing but is available on re-sentencing after a bond revocation, the court may impose it as an additional ICO condition to reflect the original sentencing intention.
- Credit against a re-imposed sentence is available for periods of bail compliance and good behaviour following arrest on a bond breach warrant, as well as for any time spent in custody.
- Conduct prior to the original sentencing, including attempts to evade police, may remain relevant context when a court assesses the significance of a subsequent bond breach.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 99, 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 7(1), 12, 69, 89, 98(3)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 73(2)
Cases
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (principle that an offender is sentenced for the offence charged, not for a more serious offence that was not the subject of the charge)