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District Court 13 November 2019

R v Edwards

[2019] NSWDC 825

Assault & violenceDrugsDomestic & family violence
CRIME SENTENCE CALLED UP FOR BREACH OF S 12 BOND ADMITTED DOMESTIC VIOLENCE OFFENCES COMMON ASSAULT

Citation: R v Edwards [2019] NSWDC 825
Court: District Court of NSW
Date: 13 November 2019
Judge: Norrish QC DCJ

Background

The offender had been sentenced in November 2017 for a drug offence under the Drug (Misuse and Trafficking) Act 1985. His sentence of one year and nine months had been suspended under section 12 of the Crimes (Sentencing Procedure) Act, placing him on a bond.

Several months before this hearing, the court was notified that the offender had allegedly breached the bond by committing further offences, all with elements of domestic violence. Those offences, which the offender admitted, included common assault, intimidation, and using a carriage service to threaten to kill. The Local Court proceedings for those matters were listed for the following Friday, with the Magistrate waiting to see how the District Court handled the bond before proceeding to sentence.

The court had before it a range of materials including an apology letter, a letter from the offender's mother, three psychological reports, a psychiatric report, and a Sentencing Assessment Report prepared for the Local Court. Those materials showed a significant deterioration in the offender's mental health since the original 2017 sentencing.

  • Whether the admitted breaches of the section 12 bond had been established.
  • Whether those breaches could be excused under the statutory "good reasons" test, such that revocation of the bond could be avoided.
  • What sentence should follow from revocation, taking into account the offender's mental health and time already spent in custody.

Decision

The court found the breaches proven and concluded that revocation of the bond was effectively mandatory in the circumstances. Under the then-applicable section 98 of the Crimes (Sentencing Procedure) Act, revocation is required unless the breach is trivial or there are "good reasons" to excuse it. The court accepted that the offender's mental condition had some causal connection to the offending, but found that connection insufficient to constitute "good reasons" within the meaning of the provision.

The court considered the NSW Court of Appeal's decision in Cooke, which confirmed that the principal consideration at a call-up hearing is the conduct giving rise to the breach and whether it can be excused. The court noted that Cooke also held, somewhat confusingly, that the subjective circumstances of an offender are irrelevant to the "good reasons" question, though it acknowledged that subjective features and explanatory circumstances can sometimes overlap. His Honour applied that reasoning as binding authority.

On the question of sentence, the court took into account the offender's diagnosed complex PTSD, a schizoid condition, and polysubstance abuse disorder, as well as the fact that he had been unmedicated at the time of the offending and had since been placed on medication in custody. Referring to authorities on mental health and sentencing, including De La Rosa and Hemsley, the court found special circumstances warranting a reduced non-parole period.

The court backdated the reinstated sentence to the date the offender first entered custody, 25 January 2019, and fixed a non-parole period of six months, which had already expired by the time of the hearing. The court noted that practical decisions about release and parole in relation to any new sentence would rest with the Magistrate in the Local Court.

Orders Made

  • Breaches of the section 12 bond found proven.
  • Section 12 bond imposed on 21 November 2017 revoked.
  • Term of imprisonment of one year and nine months fixed, commencing 25 January 2019 and expiring 24 October 2020.
  • Non-parole period of six months fixed, commencing 25 January 2019 and expiring 24 July 2019.
  • Finding of special circumstances made.

Key Takeaways

  • Under the then-applicable section 98 of the Crimes (Sentencing Procedure) Act, a court must revoke a suspended sentence bond upon proven breach unless the breach is trivial or "good reasons" exist to excuse it. The threshold for establishing "good reasons" is high.
  • Following Cooke, the NSW Court of Appeal's position is that subjective features of an offender are irrelevant to the "good reasons" inquiry; the focus is on the conduct constituting the breach and whether it can be excused.
  • A causal link between an offender's mental health condition and the conduct giving rise to a breach does not automatically constitute "good reasons" sufficient to avoid revocation.
  • Mental health diagnoses and deterioration remain relevant at the sentencing stage after revocation, particularly in assessing whether special circumstances exist to reduce the non-parole period below the statutory proportion.
  • Where a non-parole period expires before the call-up hearing is resolved, the District Court noted it no longer holds a power (for sentences of three years or less) to direct release on parole, leaving practical management of the balance of the sentence to the court dealing with any subsequent matters.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), ss 12, 24, 44, 98, 99
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25A

Cases
- Cooke (1993) 65 ACrimR 595
- Cooke v R [2007] NSWCCA 184
- R v Marston (1993) 60 SASR 320
- R v Hemsley [2004] NSWCCA 228
- DPP v De La Rosa [2010] NSWCCA 194