R v COOKE; COOKE v R

DPP v Burrow & Anor [2004] NSWSC 433 DPP v Cooke & Anor [2007] NSWCA 2 CASES CITED: R v Hallocoglu (1992) 63 A Crim R 287 R v JRD [2007] NSWCCA 55 R v Marston (1993) 60 SASR 320

PARTIES: The Crown Glen Cooke (Appl/Resp)

COUNSEL: D Arnott SC (Crown) A Francis

SOLICITORS: Director of Public Prosecutions (Crown) Legal Aid Commission

IN THE COURT OF CRIMINAL APPEAL 2006/2525 2007/1294

TOBIAS JA LATHAM J FULLERTON J

9 JULY 2007 REGINA v GLEN COOKE GLEN COOKE v REGINA Judgment 1 THE COURT: On 3 November 2006 the Crown lodged an appeal pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of a suspended sentence of 18 months imposed on the respondent by his Honour Acting Judge Mahoney in the District Court at Campbelltown on 28 September 2006. The sentence was imposed in respect of a plea of guilty to one count of malicious wounding in company contrary to s 35(2) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment. The offence was committed on 2 February 2006. The Crown submits that a sentence of full time custody should have been imposed. 2 On the same date the Crown appealed to the Court of Appeal by summons seeking prerogative relief in respect of an order his Honour made in the same proceedings where he refused to revoke bonds imposed by the Local Court on 5 September 2005 when that Court suspended sentences of 15 months pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The offences consisted of three counts of break, enter and steal and one of malicious damage to property. These offences were committed in late 2004 and were the first entry on Mr Cooke's criminal record. He turned 18 on 14 September 2004. Together with the requirement that he be of good behaviour during the currency of the bonds, Mr Cooke was required to participate in the Triple Care Farm Drug Rehabilitation Program. 3 The offence of malicious wounding in company, the subject of the Crown appeal against inadequacy, was committed 5 months after the suspended sentence and associated bonds were imposed by the Local Court. It was the conduct constituting the breach of those bonds. The judge's refusal to revoke the bonds has been heard and determined (DPP v Cooke & Anor [2007] NSWCA 2). 4 The Crown submitted on that appeal that the sentencing judge failed to deal with the issue of revocation in accordance with the approach mandated by s 98 of the Crimes (Sentencing Procedure) Act. There were no submissions to the contrary. 5 On 7 February 2007 the orders sought in the summons were granted by the Court of Appeal and the matter was remitted to the District Court judge to determine the question of revocation in accordance with law. This Court determined at that time to await the outcome of the orders to be made in the District Court following remittance before hearing the Crown appeal against the inadequacy of the suspended sentence imposed in respect of the malicious wounding. 6 On 30 March 2007 Acting Judge Mahoney heard further submissions and, after adverting to the judgment of the Court of Appeal in DPP v Cook and Anor, determined that the 15 month sentence previously suspended should be ordered to be served by way of periodic detention. That sentence commenced on 13 April 2007 and is due to expire on 12 July 2008. At the time the order for periodic detention was imposed Mr Cooke remained subject to the suspended sentence which is the subject of the Crown's appeal to this Court. This has created difficulties to which we will refer to later in this judgment. 7 On 28 May 2007, two days before the Crown appeal was listed for hearing, Mr Cooke lodged a notice of appeal seeking leave to appeal against the order for periodic detention. 8 As a matter of practical necessity the two appeals were heard together. Even though the Crown appeal against the suspended sentence for the malicious wounding was lodged in November 2006, and has been outstanding since then, it was resolved that Mr Cooke's appeal be heard first since it was thought that this may impact on the further conduct of the proceedings on the Crown appeal, in particular, if there was some question as to whether the matter should be remitted to the District Court a second time.

Applicant's Leave to Appeal Against the Revocation of the Recognisance 9 Since the definition of "sentence" in the Criminal Appeal Act includes by s 2(1) (ca) the revocation of a good behaviour bond, the ordinary principles of appellate review apply to an application for leave to appeal against the revocation of the bonds.

10 Three grounds of appeal are pressed although the first two grounds are conveniently dealt with as one single ground. Each of the three grounds concern the operation of s 98 of the Crimes (Sentencing Procedure) Act which provides as follows: 98 Proceedings for breach of good behaviour bond (1) If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond: (a) the court with which the offender has entered into the bond, or (b) any other court of like jurisdiction, or (c) with the offender's consent, any other court of superior jurisdiction, may call on the offender to appear before it… (2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court: (a) may decide to take no action with respect to the failure to comply, or (b) may vary the conditions of the bond or impose further conditions on the bond, or (c) may revoke the bond. (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 (emphasis added). 11 The orders for periodic detention were made pursuant to s 99(2) which provides as follows: 99 Consequences of revocation of good behaviour bond (1) If a court revokes a good behaviour bond: (a) … (b) … (c) in the case of a bond referred to in section 12: (i) the order under section 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, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part. (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 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 (emphasis added).

12 Since it is necessary to focus on the behaviour giving rise to the breach of the good behaviour bonds for the purposes of s 98(3), it is necessary to consider the facts supporting the charge of malicious wounding as this was the conduct constituting the breach. These facts also have significance for the Crown appeal. 13 Put shortly, the applicant joined in a fight between the victim and a co-offender on the roadway outside Cabramatta Railway Station and punched and kicked the victim while he was on the ground. The victim suffered injuries to his face requiring sutures. The fight was captured on CCTV security footage which was played on the hearing of the appeal. Whatever may have been the incident that sparked the fight, and irrespective of the fact that it was, or may have been, consensual between the co-offender and the victim, it is clear that the applicant participated while the fight was in progress by punching the victim more than once and kicking him to the head region when he was on the ground. He was not acting in defence of another. The attack was vicious and could easily have been productive of a more serious injury. Contrary to the views advanced by Ms Francis who appears for him, we are satisfied that the applicant did not seek in any real sense to intervene to stop the fight. On the contrary he joined in it. All that can be said is that after the fight had stopped he appeared to restrain his co-offender from restarting it but this was after the co-offender had moved well away from the victim and after the victim had, in turn, staggered off the roadway in the opposite direction.

Grounds One and Two 14 It is submitted that error results from the fact that the Judge not only failed to state that the good behaviour bonds were in fact revoked (even though it is conceded as a matter of practical reality this occurred) but he concluded, wrongly, that the judgment of the Court of Appeal left him with no option but to impose periodic detention, home detention or full time custody, when what was in fact required of him was to consider whether s 98(3) mandated revocation and, if it did, to then consider the sentencing options available to him under s 99(2). 15 We accept that the reasons for sentence do not include an order revoking the bonds. In addition, it would appear that his Honour misunderstood that the matter was remitted to him because the reasons he originally found for refusing to revoke the bonds, were not 'good reasons' as a matter of law. He appears to have proceeded to sentence on the basis that the Court of Appeal held that revocation was mandated in the circumstances. Furthermore, while again in a practical sense his Honour was right in identifying the available sentencing options under s 99(2), he did not apparently appreciate that it was necessary for him to re-determine the questions posed by s 98(3) and then, if satisfied that revocation was mandated, undertake a sentencing exercise in accordance with ordinary principles. 16 It was submitted by Ms Francis that given these errors we should consider remitting the matter to the District Court a second time. We indicated in the course of argument that we would decline to remit the matter. The reasons for arriving at that conclusion will become clear when we consider the third ground of appeal. 17 Before we turn to that ground however we wish to say something about the fact that his Honour did not formally revoke the good behaviour bonds. 18 A Court exercising the jurisdiction to call an offender before it for breach of a good behaviour bond as provided for in s 98(1) should, if it determines to revoke the bond under s 98(2)(c) or s 98(3), make that order before determining what, if any, further order will be made consequent upon the revocation and before considering what, if any, penalty will be imposed for the conduct giving rise to the breach. This has the virtue of making the exercise of discretion under s 99 a demarked and separate sentencing exercise, although we note that s 99(4) provides that this will be the effect of a sentence imposed under the section in any event. Sentencing for the breach first also allows for the principle of totality to operate in the event that both the breach and the conduct giving rise to it are punished by a term of imprisonment. 19 We wish to make it clear however, that a failure to order revocation of a good behaviour bond does not constitute an error of the kind that would otherwise invalidate any orders made consequential upon revocation. On the appeal, Ms Francis did not submit that his Honour's failure to revoke the bonds of itself invalidated the order he made under s 99(2).

Ground Three 20 As the argument proceeded before us, the principle ground of appeal crystallised as his Honour's failure to exercise the discretion provided for in s 98(3) and, that as a consequence, the order for periodic detention was imposed in error. It was submitted that there were 'good reasons' in accordance with 98(3)(b) for excusing the applicant's failure to abide by the good behaviour bonds and that his Honour did not give proper consideration to them in the sentencing exercise. 21 In DPP v Cooke & Anor, Howie J emphasised that in considering the extent of power conferred by s 98(3)(b) to take no action on the breach of a bond, the focus must be upon the behaviour giving rise to the failure to comply with the conditions of the bond and whether that behaviour should be excused. His Honour went on to say: [15]…A conclusion that there were good reasons for not taking action on the breach of the bond may be found in considerations other than the conduct giving rise to the breach. For example, a decision not to take action on the breach may be based upon the subjective circumstances of the offender at the time of the proceedings for revocation of the bond. Yet that is a matter that, in my opinion, is irrelevant to a determination under s 98(3)(b). [16] Clearly if there are extenuating circumstances of sufficient importance to explain the behaviour giving rise to the breach, the court can exercise its jurisdiction to take no action on the breach. So, for example, if the breach is the failure to report to a probation officer there might be good reasons to excuse that failure if the offender had some acute personal problem at the time such as illness or a death in the family. 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. An example might be driving under the influence of alcohol in an emergency situation. In such a case the court is considering whether the conduct represents a contumelious act of defiance or disregard of the conditions of the bond entered into with the court. 22 It is not submitted that the commission of the offence of malicious wounding was a case where there were extenuating circumstances leading to the offending behaviour. Neither is it suggested that the facts in DPP v Burrow & Anor [2004] NSWSC 433 are analogous. What is submitted is that notwithstanding the fact that the offence was not trivial there are good reasons for excusing the applicant's failure to comply with the bonds and that these are to be found in the objective features of the offending. They are said to be: (1) the applicant was not the protagonist and the attack not premeditated, (2) he endeavoured to stop the assault on the victim (albeit after he had himself delivered blows and kicks), (3) the victim had originally consented to the fight with his co-offender, and (4) the applicant's involvement was brief.

23 It is also submitted that the applicant's subjective circumstances at the time of the offending were such that, in combination with the objective features, they constitute 'good reasons' for excusing the breach. The subjective features are said to be that he had no previous history of violence and had accepted the guidance and counselling of various intervention programs since the original bonds were imposed.

24 We are not persuaded that either the objective or subjective matters so described constitute 'good reasons' however relevant they might be in sentencing for the malicious wounding. We have already referred to the objectively serious features of the malicious wounding offence. The subjective circumstances relied upon by the respondent do not inform the conduct in which he engaged, that is, they do not explain or shed light on the respondent's decision to join the assault upon the victim. They are irrelevant to the principal consideration under s 98(3)(b), namely, the conduct giving rise to the failure to comply with the conditions of the bonds.

25 In addition to these matters it was also submitted that the Court is obliged to inquire under s 98(3)(b) as to whether there is continued utility in the bonds remaining on foot as this would also constitute 'good reasons' for excusing the applicant's failure to comply with them. No authority was offered in support of this submission. We consider the submission to be misconceived.

26 As a matter of practical reality the qualitative assessment of triviality under s 98(3)(a) will invariably impact upon the enquiry into whether there are good reasons to excuse the offender's failure to comply with the conditions of the bond under s 98(3)(b). However, as in this case, where the failure to comply with the bonds is the commission of another and objectively more serious criminal offence that cannot on any view be regarded as trivial, it would be unusual for there to persist good reasons for excusing the failure to be of good behaviour since to make that finding on the question of revocation goes very close to excusing the commission of the offence itself. Any matters merely mitigating, as opposed to excusing the offending, can be accounted for when sentencing for the offence constituting the breach.

27 We were also invited by Ms Francis to find that the penalty imposed for the breach was disproportionate to the seriousness of the conduct giving rise to it. In this regard she referred us to an approach taken to the construction of a section not dissimilar to s 98 by the South Australian Court of Criminal Appeal in R v Marston (1993) 60 SASR 320, an approach to which Hidden J referred in DPP v Burrow and Anor at [25]. In that case his Honour stated: [25] Where the offence is relatively minor, it might be appropriate to weigh its gravity against the consequences of revocation of the bond, particularly where the suspended sentence is a long one. One of the matters to which King CJ had regard in Marston (at 322) was the "marked disproportion between the seriousness of the breaching offence and the length of the sentence which is activated by the revocation of the suspension". (Of course, I am not speaking here of offences which are trivial in their nature, for which separate provision is made in para (a).)

28 In DPP v Cooke and Anor, Howie J did not consider it necessary to form a settled view on whether the approach taken in Marston should be followed when applying s 98(3)(b). We are of the same view. We also agree with his Honour's observations that even assuming that a court could take into account the impact of the revocation of the bond, it would be a rare case where it would be appropriate to do so and such a consideration should not outweigh the legislative intention that significant and relatively inexcusable breach of a s 12 bond will normally lead to its revocation. This is not such a case.

29 In the result, we are not persuaded that error has been demonstrated in the orders his Honour made, or that his discretion miscarried when he resolved to impose orders for periodic detention. In short, we are satisfied that there were no good reasons for excusing the breach and that the bonds were properly revoked. We are further of the view that the orders made under s 99(2) were appropriate. 30 Leave to appeal is granted but the appeal is dismissed.

Crown Appeal Against the Inadequacy of the Suspended Sentence 31 As a primary submission the Crown argues that the suspended sentence should be disturbed on this appeal because of the operation of s 12(2) of the Crimes (Sentencing Procedure) Act. That section provides: An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order. 32 We do not regard that section as having any application where, in the peculiar circumstances of this case, the order for periodic detention (a sentence which is a sentence of imprisonment albeit being served periodically) was passed after the order suspending the sentence for the malicious wounding and, accordingly, at a time when the respondent was not subject to a sentence of imprisonment although he was subject to a suspended sentence. The fact that he was subject to a suspended sentence is not caught by s 12(2) (see R v JRD [2007] NSWCCA 55). 33 Given the conclusions we have reached in dismissing the appeal against the periodic detention orders, it follows that were his Honour to have initially approached the question of breach when the matter was before him on 28 September 2006, he would have revoked the bonds under s 98(3) of the Crimes (Sentencing Procedure) Act and then undertaken the sentencing exercise provided for in s 99 before determining what sentence should be imposed in respect of the malicious wounding. Assuming, as we do, the correctness of the periodic detention order on breach of the bonds, his Honour could not then have imposed a suspended sentence in respect of the malicious wounding - the conduct giving rise to the breach - because of the prohibition in s 12(2). 34 In this sense, the respondent had the advantage of the error in his Honour's approach to the operation of s 98 of the Crimes (Sentencing Procedure) Act identified in DPP v Cooke and Anor, in that when the matter was remitted to the District Court on 31 April 2007, and the proceedings on breach convened some time thereafter, he was already the subject of a suspended sentence imposed in respect of the malicious wounding on 28 September 2006, a sentence which, we emphasise, could not have been imposed if his Honour had approached the sentencing exercise free of error. 35 Even if s 12(2) is not a legislative bar to the passing of the suspended sentence, the Crown identifies additional bases which would compel this Court to conclude that a suspended sentence was a wholly inadequate penalty. 36 Principal among them is the submission that to impose a second suspended sentence was an inadequate denunciation of the respondent's criminal conduct and, for that reason, the sentence undermines the principles of general and specific deterrence. It is also submitted that this error is compounded by the fact that the sentences of periodic detention imposed in substitution for the original suspended sentence, currently overlap with the suspended sentence for the malicious wounding and produce the result that there is effectively no punishment for that offence -an offence which the Crown submits is objectively more serious than the offences of break enter and steal or malicious damage to property. 37 The Crown submits that while full time custody should have been imposed in respect of that offence, given the fact of double jeopardy on a Crown appeal, an order for periodic detention should be imposed by this Court either wholly or partly cumulative upon the existing order. It is well recognised that an order for periodic detention is itself a lenient sentencing option and is outwardly less severe in its denunciation of criminality than full time custody (see R v Hallocoglu (1992) 63 A Crim R 287 at 294). If this Court were to re-sentence the respondent, the Crown submits that the periodic detention order could be crafted so as to allow for the fact that the respondent has spent some eight months subject to the good behaviour bonds.

38 While it is clear that his Honour was conscious of the fact that the dictates of general and specific deterrence usually merit serious punishment for offending of the kind with which he was dealing, he took what can only be described as a benevolent view of the objective facts in so far as they relate to the respondent. He referred to what took place on 3 February as "aimless' and although it was "reprehensible", it was nevertheless "understandable" given the personal background of the respondent who was without an adult male in his life upon whom to model his behaviour. In imposing the suspended sentence his Honour was also persuaded by the fact that despite a troubled and sometimes violent family life and interrupted schooling, the respondent was, to his credit, making genuine efforts to turn his life around. He was developing a work history and appeared motivated to work when work was available as a tree lopper. His Honour also noted that the respondent had the support of various community-based agencies and considered that a suspended sentence "hanging over his head" would promote his continued co-operation with them. 39 We are of the view that a suspended sentence for fresh offending of a kind that involves physical violence, and offending that is aggravated by the fact that it was committed in company, was a manifestly lenient sentence. It failed to reflect the objective seriousness of the offence or to fulfil the manifold purposes of punishment where rehabilitation is one but not necessarily the most important consideration. It was patently clear that on 3 February 2006 the sentence of 15 months suspended by the Local Court 5 months earlier had not dissuaded the respondent from participating in a street fight and administering punches and kicks in the process. The fact that he had otherwise complied with the bonds and had progressed positively in other respects does not diminish the fact that the offending was a serious lapse.

The Residual Discretion 40 We are of the view that error has been established, however, in the discrete circumstances of this case, we have resolved in the exercise of our discretion not to intervene and proceed to re-sentence. We are particularly moved by the fact that while the bringing of the Crown appeal was timely, there has been an unusual delay in the disposition of issues raised by the appeal because it was necessarily heard in two parts in the Court of Appeal and then in this Court with an intervening proceeding in the District Court. This has been productive of uncertainty and disruption in the respondent's life for which he bears no responsibility. We are also of the view that were the proceedings for the breach and the malicious wounding conducted free of error, his Honour would have been required to take into account the principle of totality when imposing a penalty for breach of the bonds and sentencing for the conduct giving rise to it. Since on re-sentence this Court customarily imposes a less severe sentence than would have been imposed at first instance, we consider that any order for periodic detention that we might impose would likely be of short duration. 41 In exercising our discretion not to intervene, we are also conscious that the suspended sentence remains in place with the good behaviour bonds expiring on 27 March 2008. Accordingly, the respondent is subject to both the benefits of the bonds and the penalties that are open to be imposed should the bonds be breached until that time. 42 Accordingly, the Crown appeal against inadequacy of sentence is also dismissed.

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