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: