(3) In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied:
(a) that the offender's failure to comply with the conditions of the bond was trivial in nature, or
(b) that there are good reasons for excusing the offender's failure to comply with the conditions of the bond.
23. The fate of the s 12 bonds are before me as a consequence of the appellant consenting to this court considering the issue of revocation. I am satisfied the appellant failed to comply with a statutory provision of the bond, namely that he was to be of good behaviour. If the matter was to be considered pursuant to s 98(2). The exercise of discretion appears to be unfettered post statute, so long as one of three outcomes is reached: no action, variation of conditions of the bond or revocation. However, with s 12 bonds, there is a presumption of revocation saved only by two considerations: one- was the breach, trivial in nature or two- are there good reasons for excusing the failure to comply.
24. There are two cases I have been referred to, dealing with the exercise of discretion, as constrained as it is by s 98(3) Crimes (Sentencing Procedure) Act 1999, namely The DPP v Burrows & Anor [2004] NSWSC 433 and The DPP v Cooke & Anor [2007] NSWCA 2. In the latter case, Sully, Howie, Price JJ were sitting as judges of appeal. Sully and Price JJ subscribed agreement to the reasons of Howie J. Notwithstanding Hidden J's judgment (Burrows), reflects the opinion of a single judge sitting at first instance, his formidable reputation requires that his opinion be considered also, unless expressly disavowed by the judges presiding in the appellate jurisdiction.
25. In exercising the discretion constrained by s 98(3)(b),
o It is necessary to recognise that the breach concerned is not trivial in nature (Cooke).
o Existence or otherwise of "good reasons" for excusing failure to comply with the conditions of the bonds, requires the focus must principally be upon the behaviour giving rise to the failure and whether that failure should be excused.
o "Good reasons" for the taking action may be actually found in matters other than the conduct giving rise to the breach.
o Whether the court can have regard to matters other than that behaviour is not yet determined at appellate level (Cooke),
o 98(3)(b) does not permit the excuse of such a breach by reason only of the offender's circumstances at the time the court is considering revocation of the bond (Burrows), cf Cooke where Howie JA expressed his opinion that subjective circumstances of the offender at the time of or revocation of the bond, were an irrelevant consideration [from this distance, one does not know how fully that aspect was argued before the Court of Appeal but I find it difficult to imagine that a serious or traumatic adverse change in health, for example a motor vehicle quadriplegic condition of the offender subsequent to the breach, or the imminent death at the time of proceedings for revocation, could not alone provide good reasons for excusing a failure to comply. R v Mark John Doyle NSWCCA unreported 7 March 1996 was a case where a young man suffering Aids was in breach of a bond and the Court, was not prepared, particularly in a case that he was trying experimental drugs, to put him into custody for the last month of his life. So there is some superior court authority that is contrary to opposition:
o Where the breach is relatively minor, it might be appropriate to weigh its gravity against the consequence of revocation, especially where the suspended sentence is a long one (Burrows). Minds may differ as to what is a long sentence. From a prisoner's viewpoint, a month is a long time in prison. From a sentencing judge's perspective, a long sentence is more likely to be measured in years.
o The court should not have regard to the severity of the penalty to be imposed for the fresh offence when considering revocation (Cooke).
26. Presumably, the doctrine of totality would still apply when setting the actual sentences if one is dealing with both the s 12 offence and the breach offence at the same hearing. It is my view, s 5(1) of the Crimes (Sentencing) Procedure Act, still has work to do, even though the determination has already been made by the original sentencing judge, that a term of imprisonment is called for.
27. Arguably s 5(1) still recognises that a full time custodial sentence is harsher than periodic detention or home detention. The tensions between s 5(1) and s 98(3)(b), are factors that should be faced if one is to recognise the differences between suspended and a full time incarceration order. Howie J, although not casting his argument in terms of the tensions I have referred to, appears to deal with them in a principalled way, when his Honour says, at para 20...
"The impact of the revocation of the bond can be ameliorated in this State, by ordering that the sentence that is enlivened by the breach, be served by a periodic detention or home detention. There has also been a recent change in the legislation so that the non parole period is fixed at the date of revocation and not when the sentence was passed or suspended".
These differences indicate to me that, assuming that a court could take into account the impact of the revocation of the bond, it would be a rare case indeed in which it would be appropriate to do so in this State.
28. In this particular case, it is at this point that the difficulty arises as a result of geographic discrimination faced by offenders being held accountable in regional and remote locations. As is the case here, that many of the offenders are Aboriginal who are disadvantaged in many well recognised aspects of their lives. It makes this particular discrimination more poignant in their cases. I am not suggesting that the geographical discrimination is racially based. Far from it. It affects many regional and rural offenders but I am simply acknowledging a poignancy when the particular discrimination falls, where other discriminations have also fallen.
Resolution Of The Call-up- To Revoke Or Not?
29. I have noted the question of whether the court can have regard to matters other than behaviour, giving rise to the breach is not yet determined. That being so, provided I exercise my discretion, in accordance with s 98(3)(b) and the principles I have distilled, there is no prohibition on my finding "good reason" in matters going beyond the behaviour associated with the breach.
30. I have noted the behaviour constituting the breach is a high range prescribed concentration of alcohol. The reading is on the bottom rung of the high range prescribed concentration of alcohol. There appear to be no aggravating features to the objective criminality. There is a history, although 13 years previous, of other prescribed concentration of alcohol. The driving record also is not good. The offence constitutes a serious breach of the road rules and strikes at public safety on the roads.
31. The offence is aggravated by the breach of the s 12 good behaviour bonds I am considering. A sentence of imprisonment is called for, although absent the s 12 matters, that sentence may not need to be one requiring a full time incarceration order. That consideration of the sentence is simply to demonstrate the reflection of the seriousness of the offence.
32. I have analysed the original offences. In the absence appeal, the orders of the Local Court are entitled to respectful compliance.
33. Properly reviewed, the revocation of this s 12 bond does not call for incarceration orders. It is a matter where proper exercise of discretion, unfettered by questions of availability of existing resources, could have seen this matter resolved by a periodic detention order. Even more severe would have been a home detention order. I have not inquired as to whether the appellant has a land line at home, nor whether his record of domestic violence would exclude him, but I imagine it would. For the purposes of this judgment, I have assumed he may have qualified for a non full time custodial order.
34. In any event, the capacity of the court to ameliorate the full time custodial order is so comprised, neither other alternative to full time custody is open to a court sentencing in Moree.
35. This court should be astute against being an unaware or unwitting agent that promotes, supports or sustains discrimination through its decisions, no matter what the source or reason for the discrimination. I have identified disadvantages to those appearing before the courts in rural areas. In my view, they are unfair.
36. No matter what the source or reason for it, for the court to support or sustain such discrimination by harsher outcome, would be to tolerate the discrimination. For my part, I am unwilling to do so. I acknowledge the tensions between just deserts and punishment at some level, required by the application of the usual principles, in dealing with individuals for breach of s 12 bonds, and the finding of good reasons in this case. In my own view, the more important doctrine of equality before the law, should be given greater weight in the face of the geographical discrimination.
37. The date- setting of the s 12 bond is a hap chance. Listing matters in the Local Court is influenced by laying of charges, available court time, availability of prosecutors and of course, availability of the defence and dealing with applications or adjournments.
38. The relevance of all this is to highlight the 17 month period of non offending is more than double the length of the bond. Why there was a delay of ten months in finalising this matter is unexplained. The appellant has been making genuine efforts to turn his life around. Full time incarceration is counter productive to rehabilitation. This is not to ignore the importance of full time incarceration as punishment or as an award of just deserts. However if the primary aim of sentencing is to protect the community, short term protection via incarceration is a poor trade off for long term protection of the community through rehabilitation and community involvement. This appellant seems to have begun that path.
39. Finally I should note the importance to me of the Crown's decision not to seek to dissuade me from the course I indicated in the course of argument I was intending to take, when I gave her the opportunity so to do.
40. In all these circumstances, the appellant has satisfied the onus of establishing that there are "good reasons", for excusing the offender's failure to comply with the conditions of the bond. I have decided to take no action with respect to the appellant's failure to comply with the bond.
Resolution Of The Appeal
41. My formal orders in the appeal are these. The conviction is confirmed. The sentence imposed by the learned magistrate is confirmed. The non parole period is quashed. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, I suspend the operation of the sentence, conditional upon the appellant:
1. Being of good behaviour and
2. Abstaining from alcohol for the period of the bond.
42. I want the bond noted that I wish to be notified within 48 hours for any arrest and circumstances in which alcohol is a factor. I direct the registry to serve a copy of this bond to the officer in charge of the Narrabri Police Station.
43. To the disqualification, the disqualification order made by the Local Court is quashed and in lieu the appellant is disqualified for a period of twelve months. Was there a stay?
DISCUSSION