DPP v Cooke & Anor

DPP v Cooke & Anor [2007] NSWCA 2 CASES CITED: DPP v Nouata [2009] NSW SC 72 DPP v Burrow [2004] NSWSC 433 R v Marston (1993) 60 SASR 320

REPRESENTATION: N Boyden Barrister (Offender)

ORDERS: Section 12 Bond revoked - Sentence of imprisonment imposed

1 The offender is before this Court as a result of being charged with the offence of Driving with the Middle Range Prescribed Concentration of Alcohol. This is an offence contrary to the provisions of Section 9(3) of the Road Transport (Safety and Traffic) Management Act 1999. Such an offence is defined in Section 3 of the Road Transport (General) Act 1999 as a 'Major Offence'. The penalty provisions set out in that Act provide for a maximum penalty of 12 months imprisonment, and/or a fine of $3300. The offence is also one to which, upon conviction, a statutory regime of disqualification of license applies.

2 In the case of this offender it is relevant to note that 14th September 2004 he was convicted of the offence of Driving with the Low Range Prescribed Concentration of Alcohol. On that occasion the offender was fined $500 and as a consequence of conviction, disqualified from holding or obtaining any license for the statutory minimum period of 3 months. The relationship between that conviction and this offence is such that in addition to the penalty regime provided for a second offender as referred to above, he is liable to disqualification for an automatic period of 3 years or a minimum period of 12 months.

3 I have set out this part of the offender's history at some length. The reason is readily apparent to counsel for the offender. At the time he committed the offence on 25th April 2009 the offender was subject to the supervision of the Court. On 26th June 2008 he had been convicted of the offence of common assault. For that offence, pursuant to the provisions of Section 9 of the Crimes (Sentencing Procedure) Act 1999 he was released on a good behaviour bond. The bond was imposed for a period of two years and was made subject to supervision by the Probation and Parole Service and to participation in appropriate drug and alcohol rehabilitation programmes.

4 On the same date the offender was sentenced to a period of imprisonment for 10 months for an offence contrary to the provisions of Section 13 of the Crimes (Domestic and Personal Violence) 2007. In the exercise of its discretion the Court suspended the execution of the sentence pursuant to the provisions of Section 12 of the Crimes (Sentencing Procedure) Act 1999. The offender was placed on a bond subject to the same terms and conditions to those that were made a condition of the bond pursuant to Section 9. The duration of the bond was the same length as the period of imprisonment - 10 months. It was due to expire at midnight on 25th April 2009. I will deal with the breach of the bond ordered pursuant to Section 9 separately. My remarks at this stage are confined to the consequences of the offender being in breach of a bond ordered pursuant to Section 12 of the Act. To begin this task I turn to the offence that gave rise to a breach of the respective bonds.

5 On the afternoon of 25th April 2009 the offender was arrested and charged with the offence of driving with the middle range prescribed concentration of alcohol. He has entered a plea of guilty to that charge. This has consequences relative to the bond imposed pursuant to Section 9 and to the sentence pursuant to Section 12 of the Act.

6 Although the period of supervision and requirement for good behaviour required in relation to the Section 12 bond has now expired the provisions of Section 100 of the Act apply. Revocation of the bond is within the power of the Court. The offence committed by the offender took place some 8 hours and 3 minutes before the bond under Section 12 would have expired. As a consequence the Court must turn its mind to the provisions of Section 98 of the Act and Section 98(3) in particular. This provision is expressed in the following terms: "98(3) In the case of a good behaviour bond referred to in Section 12 a court must revoke the bond [my emphasis] 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 condition of the bond."

7 Counsel for the offender, correctly in my view, conceded that Section 98(3)(a) has no application in that the offence committed by the offender cannot reasonably be regarded as 'trivial'. It is the case therefore that unless the Court comes to the view there are good reasons to excuse the failure to comply with the breach within Section 98(3)(b), that the mandatory enforcement provisions apply and the suspended term of imprisonment must be activated.

8 As statements of principle; guidance in the approach to be taken in relation to a breach of a Section 12 bond can be found in the decisions of DPP v Cooke & Anor [2007] NSWCA 2 and DPP v Nouata [2009] NSWSC 72.

9 It is clear from the decision in Nouata that the fact that a section 12 bond may be near to expiry is not relevant to the exercise of a discretion pursuant to Section 98(3)(b). The considerations relevant to whether a bond ought be revoked are confined to those set out in Section 98(3)(a) and (b) alone.

10 Having determined that the offence giving rise to the breach cannot be regarded as trivial I turn to the observations made in DPP v Cooke & Anor. At [14] in the leading judgment in Cooke Howie J. observed: "what the court is required to consider is whether there are good reasons to excuse the failure to comply with the condition of the bond in circumstances where that failure is not trivial in nature. The focus must principally be upon the behaviour giving rise to the failure to comply with the conditions of the bond and whether that behaviour should be excused." 11 And further at [15] by way of elucidation the Court said, inter alia, that "the subjective circumstances of an offender at the time of proceedings for revocation of the bond are irrelevant to a determination under Section 98(3)(b)."

12 The Court was however mindful that there may be "extenuating circumstances of sufficient importance [my emphasis] to explain the behaviour giving rise to the breach (such that) the court can exercise its discretion to take no action on the breach". Howie J. goes on to identify examples that might lead to such a conclusion highlighting that "if the breach is a further offence the failure to be of good behaviour might be excused because of extenuating circumstances leading to the offending behaviour."

13 Ironically, given that the offence giving rise to the breach in this matter is a drink driving offence Howie J. gives an example of drink driving in an emergency situation as being such an example where the breach might be excused. Lest the offender take comfort in his Honour's observations he should understand that they did not stop at this point and in any event the offender's decision to take over the driving from his wife such as to lead to the commission of the offence establishing the breach could not in any way be regarded as a decision made in response to an emergency.

14 In referring to the observations made by Hidden J in DPP v Burrow [2004] NSWSC 433 the court expressed the view that a breach occasioned by further offending requires the court to focus on the circumstances of that offence [24] and where the offence is relatively minor to weigh its gravity against the consequences of revocation of the bond particularly where the suspended sentence is a long one [25].

15 The decision in Burrow goes on to refer to the decision in R v Marston (1993) 60 SASR 320 before distinguishing the issues the court had to determine in that matter and the legislation governing suspended sentences in South Australia from the circumstances that apply in New South Wales before stating clearly and unequivocally [21] that the principal consideration, if not the only one is upon the conduct giving rise to the breach. Such a consideration ought not occur in a vacuum.

16 Howie J. went on to endorse the comments made in Marston [22] and stated that: There is nothing more likely to bring suspended sentences into disrepute than the failure of the 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…..if offenders do not treat the obligations imposed upon them by the bond seriously and if the courts are not rigorous in revoking the bond upon breach in the usual case, both the 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." 17 And further at [26]: … 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.

18 I have set out the reasoning in Cooke at some length because it is important for the offender to know the basis upon which the court is required to consider whether to revoke the bond under Section 12. It should be clear by now that the basis is confined to a consideration of whether there is anything of sufficient persuasiveness in the commission of the offence that gave rise to the breach such that a court may reasonably conclude that there are good reasons for excusing the breach.

19 To consider this question I turn to the factual circumstances to which the plea of guilty was entered. At this stage I make it clear that I do not have regard to the subjective features relevant to the offender. They are relevant on the question of sentence for the offence itself but as the foregoing extracts from superior courts make clear, not on the issue of whether the breach ought be excused. I turn to the circumstances surrounding the commission of the offence.

20 Put succinctly, on the afternoon of 25th April 2009 the offender was driving a motor vehicle North along the Lachlan Valley Way near Boorowa. The weather was overcast and the roadway was wet after recent rain. He was stopped for the purpose of a random breath test. The roadside breath test proved positive and he was arrested. Subsequently he was taken to Boorowa Police station where a breath analysis established a reading of .115 grams of alcohol per 100 millilitres of blood. This is a reading within the middle range prescribed concentration of alcohol.

21 The factual environment is enlivened by background material tendered in his plea in mitigation to the substantive offence. Counsel for the offender tendered, inter alia, a statement from the offender's wife. Absent any evidence to the contrary that document established that present with the offender in the vehicle was his wife and his two young daughters aged 5 and 3. The document further established that the offender was known to have consumed a quantity of alcohol earlier in the morning before the family set off to drive from Kogarah to Boorowa. It was put to the court that the act of driving by the offender only commenced minutes before being pulled over by police and then only because the offender's wife felt "a bit ill". There is no suggestion in the statement that the degree of illness was such that it would have prevented her from completing the journey. In other words any change in the driver was effected as a convenience not in response to an emergency of the type postulated by Howie J in Cooke [supra].

22 It is clear from other statements in the document that the offender had consumed a considerable amount of alcohol on the previous night and had added to that consumption earlier in the day. If the statement by his wife is correct some 7 hours elapsed from his last known act of drinking yet he still returned a reading of .115. The reality of offenders being caught by the residual effects of consuming large amounts of alcohol the evening prior to the commission of this type of offence is well known to Courts in this jurisdiction. It does not assist the offender nor in my view does it create an extenuating set of circumstances.

23 It may be the case that he only drove at the instance of his wife. That is an explanation not a justification. It is not a matter to be weighed in the balance as a mitigating factor. It cannot be the case that it constitutes an extenuating circumstance. The offence to which the offender pleaded guilty is an offence of strict liability.

24 Having come to the view that there are no extenuating circumstances then the mandatory provisions referred to in Section 98(3) arise for application and in accordance with the provisions of Section 99 of the Act I revoke the bond made pursuant to section 12. The Offender is ordered to serve the period of 10 months imprisonment previously suspended. There is nothing put before this court that persuades me that special circumstances exist pursuant to Section 44 justifying interference with the statutory relationship between the head sentence and the non parole period. The non-parole period is to consist of a period of 7 months 15 days. The balance is to consist of a period of 2 months and 15 days. I have considered whether the term of imprisonment should be served by way of full time custody. In so doing I have come to the conclusion that such an outcome remains the option of last resort to be applied only after the court has rejected the appropriateness of either Periodic Detention or Home Detention. I do not believe that Periodic Detention adequately addresses the seriousness of the offender's conduct. Nor does such an outcome provide access to the driver rehabilitation and alcohol rehabilitation programmes that the offender clearly needs to address the underlying aspects of causation.

25 In light of the offender's history and seemingly well entrenched issues with alcohol and major traffic offences the subjective circumstances warrant consideration as to whether he is suitable to serve his sentence by way of Home Detention. The proceedings are adjourned until 13th November 2009 to enable an assessment to take place.

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