R v Charters

(i) Under s 12(3), Crimes (Sentencing Procedure) Act 1999 (NSW), execution of the sentence is suspended, and therefore the term of the sentence does not commence.

(ii) The effect of s 12(3) is that s 47 does not apply in respect of a suspended sentence unless and until an order of revocation made: R v Tolley [2004] NSWCCA 165 (per Howie J at [26], [33]-[39]; and Hodgson JA at [2]). This is confirmed by the provision of s 99(1)(c)(iii). [17]

(iii) Accordingly, when a revocation order is made, the sentence commences from that date.

(iv) Quare if there is any right to appeal from an order of revocation made under s.99.

(vi) The circumstances of the offence to which the applicant pleaded guilty were serious, threatening another person's life and damaging their property before them whilst wielding a knife, without provocation. The original sentence of two years imprisonment was not excessive in all the circumstances: R v Thomson; R v Houlton (2000) 49 NSWLR 383 .

1. Extend the time in which to seek leave to appeal against the original sentence up to 2 August 2004.

2. Leave to appeal in these proceedings is granted pursuant to sections 5(1)(c) and 10(1)(b) of the Criminal Appeal Act 1912 (NSW).

IN THE COURT OF CRIMINAL APPEAL 2004/60265

Beazley JA Wood CJ at CL Hulme J

26 November 2004 Regina v. Guy Graham Judgment 1 BEAZLEY JA: The applicant pleaded guilty in the District Court to a count of affray under s.93C of the Crimes Act 1900 (NSW). The offence, when charged as an indictable offence, as it was here, carries a maximum penalty of imprisonment for 5 years. The offence occurred on 13 September 2001 when the applicant, armed with a knife, forced his way into his neighbour's unit and threatened to kill him. He was sentenced on 7 March 2003 by Stewart ADCJ to a term of imprisonment of 2 years, commencing on that date. His Honour then suspended the sentence pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999, conditionally upon the applicant entering into a good behaviour bond for the term of the sentence. It was a term of the bond that the applicant report to the Probation and Parole Service and obey all reasonable directions of that service. 2 On 15 September 2003, the applicant was called up before the Court for breaching the good behaviour bond due to a failure to report to the Probation and Parole Service during the period 22 July 2003 to 27 August 2003. Thus, although he had not breached the good behaviour bond by the commission of a further offence, he had only complied with its conditions for a period of 4 months. 3 On 16 October 2003, Stewart ADCJ revoked the good behaviour bond whereupon the original sentence of 2 years imprisonment took effect. His Honour ordered that the sentence commence from the date of revocation, that is 16 October 2003. His Honour specified a non-parole period of 18 months. 4 The essential question on the appeal is whether the trial judge, when he revoked the good behaviour bond, was entitled to impose the original sentence commencing from the date upon which the order for revocation was made or, whether the sentence of imprisonment reimposed at the time of revocation had to date back to the original date when sentence was imposed, in this case, 7 March 2003.

The statutory regime 5 The statutory regime which governs the imposition of suspended sentences and their revocation is contained in Pts 2 and 8 respectively of the Crimes (Sentencing Procedure) Act. 6 Provision for suspended sentences is made in Pt. 2 Div. 3 of the Act. Pt. 2 deals generally with penalties that may be imposed and Div. 3 thereof deals with non-custodial alternatives. Section 12, which is within Div. 3 provides for suspended sentences. At the time the applicant was sentenced, s.12 provided: (1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enter into a good behaviour f for a term not exceeding the term of the sentence. … (3) Subject to section 99(1) Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the terms of the sentence. 7 Pt. 4 deals with the sentencing procedure for imprisonment and includes provisions relating to non-parole periods: ss. 44, 45 and 46; and provisions governing the date of commencement of sentence: s.47. I will return to these provisions later. 8 Pt. 8 deals with sentencing procedures for good behaviour bonds, including proceedings for breach of a bond: s.98; and the consequences of revocation of a bond: s.99. Section 98 provides that if the court suspects that an offender has failed to comply with any condition of a good behaviour bond then the offender may be called up before it: s.98(1). In dealing with an offender who has failed to comply with the condition of a bond which has been imposed under the provisions of s.12, the court "must revoke the bond" unless the failure to comply was trivial: s.98(3)(a); or, there were good reasons for excusing the failure: s.98(3)(b). 9 In this case, it is apparent that the sentencing judge did not consider that either paras. (a) or (b) of sub-s. (3) applied as he proceeded to revoke the good behaviour bond. 10 Section 99 (as it applied to the applicant's case) then provides: (1) If a court revokes a good behaviour bond: (a) in the case of a bond referred to in section 9, it may re-sentence the offender for the offence to which the bond relates, or (b) in the case of a bond referred to in section 10, it may convict and sentence the offender for the offence to which the bond relates, or (c) in the case of a bond referred to in section 12: (i) the order under s.12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting … the term of the sentence, and (iii) subject to the requirements of Part 4 having been complied with, the sentence takes effect.

(2) Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates (disregarding any part that has already been served) is to be served by way of periodic detention or home detention. (3) An order made under subsection (2) is taken to be a periodic detention order made under section 6 or a home detention order made under section 7, as the case requires. (4) This Act applies to the sentencing or re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction. (5) An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence. 11 Three things should be observed about s.99(1). Where a bond under s.9 is ordered no sentence of imprisonment is imposed. Thus, where such a bond is revoked, the Court resentences. Where an order in relation to a bond is made under s.10, no conviction is entered and, consequently, no sentence of imprisonment is ordered. Accordingly, on revocation of the bond, the court sentences for the first time. However under para. (c) which applies here, the court, at the time it revokes the good behaviour bond, neither "sentences" nor "re-sentences" because there is already a sentence imposed which has been "suspended". Upon revocation, therefore, the sentence that was originally imposed "takes effect". 12 Section 100, provides that action may be taken under Pt 8 after the good behaviour bond has expired but in respect only of matters arising during the term of the bond. 13 The effect of s.99(1)(c)(ii) is that upon revocation of the bond it is necessary for the court to apply the provisions of Pt 4 dealing, inter alia, with the setting of the non-parole period. None of that is in issue in this case. The question which arises is whether once the revocation order is made and the order under s.12(1)(a) ceases to have effect the sentence originally imposed commences from a date that the court then specifies, or is taken to have commenced on the date that it was originally imposed. In this case, the competing dates are 7 March 2003 when the sentence was originally imposed, or 16 October 2003 when the good behaviour bond was revoked. 14 Section 47 is relevant to this question. It provides that a sentence of imprisonment commences on the day on which the sentence is imposed: s.47(1)(a). The sub-section is subject to s.70 which is not presently relevant. Section 47(1) is also subject to s.47(2), to which s.47(2)(a) is relevant. It provides that a court may direct that a sentence of imprisonment is taken to have commenced on a day occurring before the day on which the sentence is imposed.

Should the sentence of imprisonment have commenced on the date the good behaviour bond was revoked? 15 The applicant contends that a person is taken to be serving part of a sentence even though not in custody. Accordingly, in this case, the time between the date of the s.12(1) order and the revocation of the bond should have been taken into account so that the sentencing judge was required, under s.99, to commence the term of imprisonment on 7 March 2003. In support of this argument the applicant relied upon R v. Carngham (1978) 140 CLR 487. 16 In that case, it was held that an order under s.20(1) of the Crimes Act 1914 (Cth) that permitted the court to order the release of a person after the person had served a portion of the sentence of imprisonment imposed, was part of the "sentence imposed". It followed that an appeal lay against the whole of the sentence, including the order for conditional release. That is quite a different point from that raised here. Carngham has nothing which is relevant to the applicant's submission and is not authority for the proposition that the sentence, termed a "suspended sentence", commences on the date of the imposition of the original period of imprisonment, in this case 7 March 2003. Nor, in my opinion, can the applicant's submission be supported on any other basis. 17 Under s.12(3) the court is not required, and should not, specify the commencement date of the sentence of imprisonment. This is apparent from the plain words of the section as a whole - execution of the sentence is suspended. If execution of the sentence is suspended, the term of the sentence does not commence. The effect of s.12(3) is that s.47 does not apply in respect of a suspended sentence unless and until an order of revocation is made. This is apparent from the terminology of s.99(1)(c)(iii) which provides that upon revocation the sentence takes effect. The corollary is that until then, the sentence has not taken effect. It follows that as a matter of the combined operation of ss. 12 and 99, the principle upon which the applicant relies has no application. 18 Next, the ordinary and natural meaning of the provisions of s.12(1) namely, that what is suspended is execution of the term of imprisonment, makes it more likely, that upon revocation, what would be expected to happen is that the term of imprisonment is then activated. The New South Wales Law Reform Commission, in its Discussion Paper 33, 'Sentencing', certainly understood that this was the effect of a suspended sentence. The Discussion Paper states at 9.57: "As commonly understood, a suspended sentence is one where a specific sentence of imprisonment is imposed, but not put into immediate effect … and [the offender] is liable to serve the term of imprisonment in the event of breach of those conditions." (emphasis added) 19 Whilst a general understanding of a concept such as a suspended sentence must give way to the express statutory provisions which deal with that matter, the statutory provisions bear this meaning. 20 Further, if the section operated in the way for which the applicant contends, then s.100 could have no effective operation. 21 The applicant's construction would lead to incongruous results. Take this example. Assume an order was made suspending a sentence of imprisonment for a term of 2 years on 7 March 2003. Further, assume that a breach occurred on 25 July 2003 but that the offender was not apprehended until 25 July 2004 and was not brought before the court for the purposes of the making of a revocation order until 7 September 2004. On the applicant's case, the offender could only be imprisoned for the period commencing 7 September 2004 and ending on 6 March 2005, the date upon which the suspended sentence would otherwise have expired. Let it also be assumed that a co-offender was sentenced on the same day and also breached the good behaviour bond on the same day, that is 25 July 2003, and in the same way as the first offender. However, the co-offender was apprehended on 26 July 2003 and brought before the court and dealt with under s.99 on that day. On the applicant's argument, the co-offender would then be required to serve a sentence of imprisonment from 26 July 2003 until 6 March 2005 notwithstanding that he had been sentenced in respect of the same offence and the order made under s.12(1) had been revoked for the same breach of condition of the good behaviour bond. 22 But in any event, the matter is governed by authority in this Court as counsel for the applicant properly brought to the Court's attention. In R v. Tolley [2004] NSWCCA 165, the court found that s.99(3) operates in the manner I have explained. Howie J at [26] pointed out that the fact that s.47 does not apply at the time that the order suspending the sentence is made "is fundamental because it means that the court … does not nominate the commencement date of the sentence (because s.47(2) does not apply) nor does the sentence automatically commence on the date that it was imposed (because s.47(1) has no effect)." Howie J at [33]-[39] points to some difficulty of construction with the interaction of s.99(1)(c)(ii) and s.47. The difficulty perceived by his Honour was that if s.47(1) was to apply literally, then the sentence would have to commence on the date of its original imposition. His Honour resolved that difficulty by construing s.47(1) in relation to the case of the revocation of a bond ordered under s.12 by construing the words in s.47(1) "the day on which the sentence is imposed" as being the date upon which the sentence takes effect pursuant to s.99(1)(c)(iii). Hodgson JA saw the same resolution of the interaction of the sections. He said at [2]: "… The consequences of giving effect to a literal interpretation of s.47 … in the case of revocation of a s.12 bond are so anomalous that the following approach is preferable. Upon revocation of a s.12 bond, s.99 requires the court to apply s.47, and subject to s.47 and any other relevant part of Pt. IV (sic) being complied with the sentence 'takes effect'. That means that, for the first time, there is an effectual imposition of a sentence; and accordingly, in that case, 'the day on which the sentence is imposed' in s.47 should be taken as the day on which the sentence takes effect pursuant to s 99(1)(c)(iii)." 23 I agree. In my opinion that interpretation flows directly from the terms of s.47 which govern the date upon which the sentence of imprisonment commences. In the case of an order suspending a sentence of imprisonment under s.12 there is no sentence of imprisonment in operation. The operation of the sentence has been suspended. If the sentence of imprisonment then takes effect because of the revocation order under s.99, s.47 then comes into play and operates on the sentence of imprisonment taking effect. 24 There is nothing in R v Hyde (2003) 142 A Crim R 32; [2003] NSWCCA 154 or R v Charters [2004] NSWCCA 40, upon which the applicant also relied, which is inconsistent with this interpretation. Nor is either case directly on point. 25 In Hyde, the trial judge had only suspended part of the sentence when making the order under s.12. That was permissible under the legislation in the form it was in relation to that case: Gamgee (2001) 51 NSWCR 707. However, when the bond was revoked under s.99(1)(c), the Court ordered that the whole of the sentence of imprisonment that had been imposed, namely 2 years, be served, commencing on the date of the revocation of the good behaviour bond. To that extent it is consistent with the construction I have given to the section. The error in Hyde was that the trial judge, upon revocation of the bond, specified that the whole of the sentence had to be served, when the period of the bond was only for a portion of it. That problem does not arise here. 26 In Charters, the trial judge, when revoking the bond, failed to have regard to the fact that the convicted person had already served 6 months of the 2 year sentence that had been suspended. That is not the question here either. In Charters, when ordering that the sentence have effect, save for the portion of the sentence already served, the Court of Criminal Appeal did not backdate the sentence to the date the sentence was originally imposed. Rather, and correctly, the Court commenced the sentence so that it ran from a date that took into account the period already served. It follows, therefore, that there was no error in the sentence taking effect as and from the date of the revocation order.

Leave to appeal against the original sentence: Does the applicant have a right to seek leave to appeal? 27 The applicant, alternatively, seeks leave to appeal from the severity of the original sentence. The respondent contends that any such appeal is incompetent. The essence of this submission, as I understand it, is that when the Court revoked the bond under s.99(1)(c), the Court's function was thereby complete. It neither re-sentenced as the Court does under s.99(1)(a) when it orders a s.9 bond, nor did it sentence under s.99(1)(b) as it does in the case of a s.10 bond. Rather, the effect of the revocation order is that the order suspending the sentence ceases and the sentence takes effect: s.99(1)(c)(iii). It followed, on this submission, that the appeal provided for in s.99(5) had no application to the revocation of a s.12 bond under s.99(1)(c)(iii). I consider that argument to be correct. However, I do not consider that an appeal from the original sentence is unavailable. 28 Section 5 of the Criminal Appeal Act 1912 provides that a person convicted on indictment may, with the leave of the court, appeal against the sentence passed on the person's conviction: s.5(1)(c). The Notice of Intention to Apply for Leave to Appeal must be filed within 28 days after the date of the sentence: s.10(1)(a). However, the court may "at any time" extend the time within which notice under para. (a) is required to be given: s.10(1)(b). 29 In my opinion, the applicant's application for leave to appeal against sentence is properly made under s.5 of the Criminal Appeal Act 1912. It is, of course, out of time. That is understandable. It would not be unusual for an accused person, the subject of a suspended sentence under s.12, not to appeal. The full implication of such a sentence might not have come home to such a person until faced with the reality of gaol. This is so, despite the fact that the sentencing judge, at the time that he made the order suspending the sentence is required to inform the applicant, of the consequences of breach as Stewart ADCJ did in this case. Accordingly, notwithstanding the delay in giving notice seeking leave to appeal, I would extend the time for filing the notice until 2 August 2004, the date upon which notice was given. 30 However, I would dismiss the appeal for the following reasons. The circumstances of the offence to which the applicant pleaded guilty were serious. The applicant threatened the life of the victim, after bursting into the victim's home and did so whilst wielding a knife. He caused significant damage to the door of the victim's unit (this is the subject of one of the matters on the Form 1). Even after the applicant was manoeuvred out of the unit, he "maintained his rage" by throwing a brick through the window. The victim had done nothing to provoke the applicant. 31 Counsel for the applicant submitted that the sentence of 2 years imprisonment was excessive and that his Honour had failed to take into account a number of relevant circumstances. In particular, he failed to make any reference to the applicant's plea of guilty, to the mental condition from which the applicant suffered at the time or to his efforts at rehabilitation. 32 At the time of the accident, the applicant was suffering from depression as a result of a motor vehicle accident in 2000. He also suffered from chronic back pain and was deleteriously affected by his substance abuse which was said to have arisen after and resulted from the accident. There was also medical evidence before the Court that the applicant, at the time of the offence, was suffering from impaired judgment brought on, it would appear, entirely from having drunk a significant quantity of alcohol. At the time of his sentence before Stewart ADCJ, the applicant had commenced drug and alcohol rehabilitation with some success. However, it had taken some effort on behalf of those assisting the applicant, predominantly his legal representatives, to get the applicant back before the Court so as to be dealt with for breach. These matters were all relevant to sentence. 33 The applicant's criminal history was also before his Honour and there were certain aggravating features of that criminal history that were brought to his Honour's attention. In particular, the offence occurred during the currency of a good behaviour bond, that had been imposed upon the applicant on 13 June 2001 for the offence of common assault. In addition, at the time of the commission of the of the offence, he was on bail for the offences of indecent assault and malicious damage. Those matters were listed before the Sutherland Local Court on 3 October 2002 but the applicant had not appeared and was found guilty in his absence and a warrant issued. Those matters had not been back before the Court for the purposes of sentence at the time that the applicant came before Stewart ADCJ. There were two matters on a Form 1 which had to be taken into account on sentence of the offence of affray at the time of sentence. Those matters were associated with the occurrences on 13 September 2001. The first matter was the offence of malicious damage, which related to the damage that the applicant did to the door of the victim's unit when he repeatedly stabbed into it with the knife. The door also came off its hinges. The other matter related to the offence of resist a police officer in the execution of his duty, which occurred when the police arrived at the scene. In accordance with Attorney-General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; [2002] NSWCCA 518, his Honour was entitled to impose a greater penalty than he might otherwise have done for the principal offence had there been no matters on a Form 1. 34 In his Remarks on Sentence the trial judge observed that the matter could have been dealt with summarily, but was not and thus carried a maximum sentence of 5 years imprisonment. He stated that the circumstances of the offence did not call for the maximum sentence. However, he remarked upon the likely terrorising effect on the victim and the fact that the applicant had consumed an enormous amount of alcohol. His Honour also noted that the applicant had made some effort to cease drinking. However, apart from the actual circumstances of the offence, his Honour did not refer to any other matters in his Remarks on Sentence. 35 Under the Crimes (Sentencing Procedure) Act, the court is required to take into account factors that both mitigate and aggravate the offences: s.21A. In this case there were a number of aggravating features. There was the threatened use of violence: s.21A(a)(b); the threatened use of a weapon: s.21A(2)(c); the applicant had previous convictions: s.21A(2)(c); and the offence was committed while the applicant was on bail for another offence: s.21A(2)(j). 36 There were also mitigating factors. In particular, the offence was not part of a planned or organised criminal activity: s.21A(3)(b), and the applicant had entered a plea of guilty: s.21A(3)(k). There were also prospects of rehabilitation: s.21A(3)(h). 37 His Honour did not expressly mention these provisions, nor was he required to. Most of the circumstances, both aggravating and mitigating, were adverted to in one way or another in the course of his Honour's remarks outlining the circumstances of the affray. His Honour made specific mention of the applicant's attempts at rehabilitation although it is clear that he was sceptical of his prospects in that regard. 38 His Honour did not refer to the applicant's plea of guilty. The plea of guilty was entered on the morning that the matter was due to go to trial. Given the plea, the matter was stood over until it eventually came before Stewart ADCJ. Section 22 of the Crimes (Sentencing Procedure) Act provides that a plea of guilty must be taken into account on sentence. This does not necessarily mean that it will result in a lesser sentence but it enables the court to impose a lesser sentence if it considers it appropriate to do so. 39 The principles to be applied where there has been a plea of guilty have been the subject of a guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383. There, this Court, constituted by five judges, held that a sentencing judge should state if a plea of guilty has been taken into account in reduction of the sentence which otherwise would have been imposed and that a failure to do so would generally be taken to indicate that the plea was not given weight. 40 As his Honour made no reference to the plea of guilty it would appear that he did not give it weight. It would of course have been preferable for his Honour to have indicated how he dealt with the plea of guilty. However, in this case I do not consider that it can be said that his failure to do so has affected the overall sentencing process. The plea was a late plea. Although the victim did not wish to give evidence, there were other witnesses to the offence and the applicant was apprehended on the grounds of the premises. This was a case where the trial judge did not err, as a matter of discretion, for failing to give a discount for the plea. 41 In my opinion, in all the circumstances, the sentence imposed by his Honour was an appropriate sentence and it is not one in respect of which a less severe sentence is warranted in law and should have been passed: s.6 Criminal Appeal Act. 42 That leaves a final matter for consideration, that is, whether, upon revocation of the good behaviour bond his Honour should have considered whether it was appropriate to make an order directing that the sentence of imprisonment to which the bond related ought to have been served by the applicant either by way of periodic detention or home detention: see s.99(2) of the Crimes (Sentencing Procedure) Act. 43 An initial question arose in relation to this issue, namely, if there is any right of appeal in relation to his Honour's omission when making the order under s.99. The Crown submitted that no right of appeal flows from s.99. This may be correct, unless an order made under s.99 can be considered to be an interlocutory order. Alternatively, it may be that his Honour's failure could have been brought before the Court by way of prerogative writ. I should add that s.43, which provides that a court may reopen proceedings to correct a sentencing error, does not apply. That section only applies where the Court has imposed a penalty that is contrary to law, or has failed to impose a penalty that is required to be imposed by law. In the result, it is not necessary to finally determine that matter, because, for the reasons which I have already stated, I consider that the sentence imposed originally by his Honour was appropriate and not one "not warranted by law". 44 Further, this is not a matter where the Court would have ordered either periodic detention or home detention: see s.99(2). The applicant was in custody at the time he came before Stewart ADCJ on 16 October 2003, having breached the conditions of an order for 9 months periodic detention imposed on 13 March 2003 for a charge of assault act of indecency. 45 Before concluding, the following must be said. This case, as was the case in R v. Tolley, throws up in striking form the difficulties of construction and the inadequacies of the legislation dealing with the consequences which flow from s.99. The statutory interaction between s.99(1)(c) and s.47, as well as the rights of appeal which flow from both when an order under s.12 has been made, and where an order of revocation has been made, ought to be urgently addressed by the legislature, to remove the uncertainties and complications which presently exist. That review should extend to considering the expansion of the definition of "sentence" in s.2 of the Court of Criminal Appeal Act to include an order for revocation of a bond and a failure or refusal to make orders which a sentencing court could have made (including orders under s.99(2)). 46 The formal result that I propose is:

1. Extend the time in which to seek leave to appeal against the original sentence up to 2 August 2004.

2. Leave to appeal in these proceedings is granted pursuant to sections 5(1)(c) and 10(1)(b) of the Criminal Appeal Act 1912 (NSW).

3. The appeal is dismissed. 47 WOOD CJ at CL: I have read in draft form the judgment of Beazley JA. I agree with the orders proposed, and with the reasons of her Honour. 48 HULME J: I agree with Beazley JA. **********

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