I agree with the observations which have fallen from His Honour the Chief Justice. In doing so, I would repeat the comments which I made in R v Lawrie, (unreported) (Court of Criminal Appeal) 16 November 1992, judgment No S3704: "To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out."
23 With respect I would endorse those sentiments. There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.
24 As King CJ pointed out, it should not be forgotten that before suspending a sentence the court must have reached the view that nothing but a sentence of imprisonment was appropriate to punish the offender for that crime: see R v Zamagias [2002] NSWCCA 17. The suspended sentence is not an alternative to a bond and should not be treated as such. The suspension of the sentence of imprisonment was an act of mercy designed to assist the offender's rehabilitation or for some other purpose to benefit the offender on the understanding that, if the offender did not fulfil the conditions of the bond, the sentence would be imposed. Therefore, generally speaking, there can be no unfairness in requiring the offender to serve the sentence when the obligations under the bond have been breached.
25 Whatever else might be said about the reasons of the Judge in the present case, there appears to be no consideration at all of the policy behind suspended sentences. Nor is there any obvious appreciation of the intention of Parliament, that is made clear from the special provisions made for bonds under s 12 and the need for "good reasons" to be found, that in the ordinary case a failure to comply with the conditions of the bond will result in its revocation. The court does not determine the existence of good reasons in a vacuum. It does so in the context of the policy and purpose behind the suspended sentence regime and by recognising that by excusing the breach the implicit threat made to the offender at the date of the imposition of the suspended sentence will not be carried out. If the realisation of this threat is avoided in inappropriate cases, it can only result in the lowering of respect for the orders of the court by the offender and the public in general.
26 However, there seem to me to be more obvious errors of law in the approach undertaken by the Judge, as was conceded by Ms Francis on behalf of the offender. As Hidden J noted in Burrows, the sentence to be imposed for the offence giving rise to the breach cannot be taken into account in determining whether to revoke the bond. The penalty to be imposed for the offending behaviour is simply irrelevant to the determination of whether good reasons exist to excuse the breach. Of course a consideration of the seriousness of the behaviour giving rise to the breach and what that behaviour discloses about the attitude of the offender with regard to the obligations imposed by the bond will be relevant both to a determination whether to revoke the bond and to an assessment of the sentence to be imposed for the offence giving rise to the breach. But they have different roles to play in the exercise of the discretions arising from the two proceedings. In sentencing for the offence they may indicate, for example, the need for a penalty reflecting specific deterrence. But this is a matter that has no relevance in determining whether to excuse the breach.
27 It is important that a court in the position of the Judge in the present case recognise that there are two distinct jurisdictions being exercised when determining the sentence for an offence that is also a breach of a s 12 bond. Each jurisdiction requires the court to exercise a discrete and independent discretion. Of course they are not completely independent jurisdictions and the exercise of the discretion to revoke the bond might indirectly influence the sentencing discretion. For example, if the court determines to revoke the bond and the sentence previously suspended thereby comes into operation, the court would not then have the power to impose a suspended sentence for the offence that brought about the breach, even if that were thought to be an otherwise appropriate sentence: see s 12(2) of the Act. There are other ways in which the decision under s 98(3)(b) can indirectly affect the sentence to be imposed for the offence by making a sentencing option either unavailable or inappropriate.
28 It is clearly preferable that, wherever possible, the one court should consider both the breach and the sentence for the offence causing the breach: there may be overlapping findings of fact to be made in the two proceedings and questions of totality would arise if the bond were revoked and a further term of imprisonment imposed for the offence. But it is of crucial importance that the breach proceedings be resolved before the sentence is imposed for the offence. This is because, as I have indicated, the result of the breach proceedings can affect the sentence to be imposed for the offence but the sentence for the offence is irrelevant to a determination of whether there are good reasons to excuse the breach.
29 This is not what happened in the present case and it is a good example of how the proceedings can miscarry if the court does not keep the two issues to be decided separate and distinct. It is obvious from both the reasons given for excusing the failure under s 98(3)(b) and the manner in which the Judge approached the issue of whether to excuse the breach that the sentence for the wounding offence was determined before the issue of the breach was resolved. The judge decided to excuse the breach in order to give effect to the sentence he imposed for the offence. This resulted in the Judge failing to ask himself the correct question in relation to the breach proceedings and in determining those proceedings by taking into account exclusively an irrelevant consideration.
30 In the longer passage of the sentencing remarks quoted above the Judge answers the Crown contention that there are no good reasons to excuse the breach by, firstly, a consideration of the sentencing principles espoused in the Crimes (Sentencing Procedure) Act and next a consideration of issues of parity between the applicant and his co-offender. Both of these matters might have been relevant to assessing the sentence for the offence but they had absolutely nothing to do with deciding whether the breach should be excused.
31 The Local Court had determined that suspended sentences should be imposed for the break, enter and steal and malicious damage offences. The Judge could not determine that there were good reasons for excusing the breach on the basis that it was inappropriate to impose a sentence of imprisonment on the offender for those offences. Considerations relevant to determining whether to breach the bond did not include the necessity for the applicant to be rehabilitated rather than imprisoned. The Local Court in deciding to impose the suspended sentences no doubt took that matter into account and the Judge was not sitting by way of appeal from the decision of the magistrate to impose the suspended sentences. Reflections on the policy of the Crimes (Sentencing Procedure) Act or an acknowledgment that a sentence of imprisonment should be a last resort were irrelevant considerations in determining whether the breach should be excused.
32 There is another error of law apparent in the Judge's reasons that resulted from the approach taken by the Judge in determining the sentencing proceedings first and then the breach proceedings. In the shorter quote from the sentencing remarks above, the Judge, when summarising his reasons for not revoking the bonds, referred to the "range of sentencing options open to me". Putting aside the question of whether the Judge was entitled to take into account the impact of the consequences of the revocation of the bond, it is clear that the Judge erroneously limited his consideration of the options available to him on revocation of the bond by his determination of the sentence for the offence. The reference to the "range of sentencing options" can only be understood by having regard to the Judge's findings in his remarks on sentence.
33 The Judge thought that by reasons of parity he could not impose on the offender a sentence harsher than that imposed upon the co-offender. Yet the co-offender was not eligible for periodic detention or community service. Therefore, so his Honour reasoned, he could not impose either of those sentencing options or a harsher sentence on the offender. It is inappropriate to analyse further the Judge's reasoning in determining the sentence to impose for the wounding offence because that sentence is subject to a Crown appeal. But the point for present purposes is that the Judge considered that it was a relevant factor in determining the breach proceedings that he was limited in some way by the sentencing options open to him for the wounding offence and the need, as he saw it, to assist with the rehabilitation of the offender. Again they were extraneous considerations when exercising the functions under s 98(3)(b).
34 Hidden J in Burrows held that the subjective circumstances of the offender are generally irrelevant in determining whether there are good reasons to excuse the breach under s 98(3)(b) except to the extent that those subjective circumstances are relevant to a consideration of the breach itself. So, for example, the fact that the offender suffers from a mental disorder that may account for the failure to comply with the conditions of the bond will be a relevant factor in determining whether to excuse the breach: see Marston. But subjective features of the offender at the time of the breach proceedings are irrelevant to the decision whether good reasons exist to excuse the breach. They may of course have some role to play in what order is made after revocation when determining whether the consequential sentence is to be served by way of full-time custody, or an available alternative and the length of the non-parole period to be imposed. But they cannot affect the decision whether to revoke the bond.
35 In the present case it was an error of law for the Judge to take into account the need for rehabilitation of the offender by supervision of the probation service when deciding whether to excuse the breach. The error is a result of the Judge both approaching the determination of the breach proceedings in light of the sentence imposed for the wounding offence and by determining the breach proceedings by focusing on the consequences of the revocation of the bond to the exclusion of any other consideration.
36 Put simply the relief sought in the summons must be granted because the reasons given by the Judge for taking no action on the breach could not at law amount to good reasons for excusing the breach under s 98(3)(b). Further, there is nothing in the sentencing remarks that could possibly amount to good reasons under s 98(3)(b) and thus it follows that there is no basis upon which the court could exercise a discretion to refuse to quash the determination of the Judge to take no action on the breach.
37 The question then arises as to what course should be taken by way of consequential orders. The Director seeks to have the breach proceedings remitted to the District Court. The applicant asks the Court to remit them to the Local Court on the basis that he will no longer consent to the jurisdiction of the District Court. The Director in the alternative asked the Court to exercise its power under s 23 of the Supreme Court Act and to deal with the question of whether the bonds should be revoked as a consequential order to its exercise of the power under s 69. That does not appear to me to be a practical course to take even if the Court had the power to exercise that jurisdiction. As a result of section 98(1C) of the Crimes (Sentencing Procedure) Act this Court is not a "court of superior jurisdiction" for the purposes of s 98(1)(c) with the result that this Court has no jurisdiction to deal with the breach under that Act even with the consent of the offender. But in any event, if this Court were to determine the breach proceedings, such a course would deprive the offender of any appeal against the order revoking the bond or any order made as a consequence of the revoking of the bond that might lie against orders made either in the District Court or the Local Court depending upon where the breach proceedings are heard and determined.
38 It seems to me that the appropriate course is to quash the determination of the Judge to take no action on the breach and to remit the matter to the District Court because it is the record of that court that has been brought into this Court by the summons and it is the orders of that court that are being quashed. If the offender purports to withdraw consent to the District Court's further hearing the breach proceedings, it will be a matter for that court to determine where the breach proceedings will be heard.
39 The orders I propose are that:
1. The record of the District Court sitting in its criminal jurisdiction at Campbelltown in the proceedings before his Honour Acting Judge Mahoney QC on 28 September 2006 of Regina v Glen Cooke 06/21/3111 being proceedings for breach of five bonds entered pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on 5 September 2005 with the Liverpool Local Court be called up into this Court;
2. The determination by Mahoney ADCJ in those proceedings to take no action on the breach of the five bonds under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 is quashed;