Solicitors:
Director of Public Prosecutions - Crown
Randall Legal - Offender
File Number(s): 2011/3545
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Judgment - EX TEMPORE (rEVISED)
The offender appears before me having been issued with a call-up notice pursuant to s 98(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). That notice stems from the alleged breach of a bond imposed upon the offender by me on 7 December 2012. The background to the breach can be summarised as follows.
On 27 July 2012 the offender pleaded guilty before me to an offence contrary to s 315 of the Crimes Act 1900. That offence carries a maximum penalty of seven years imprisonment. I do not propose, in the circumstances, to canvass the facts of that offending. They are set out in full in my previous judgment: R v Grant [2012] NSWSC 1491 at [6] - [18] inclusive.
On 7 December 2012 I sentenced the offender to a fixed term of imprisonment of 12 months commencing on 7 December 2012 and expiring on 6 December 2013. I concluded that the sentence should be wholly suspended, and I immediately released the offender from custody on a bond pursuant to s 12(1)(b) of the Sentencing Act. That bond was subject to a number of conditions. For present purposes only one of those conditions is relevant, namely that which required the offender to be of good behaviour.
On 23 November 2013 the offender pleaded guilty before the Casino Local Court to a charge of assault which occurred on 7 October 2013. Although the Bench sheet from the Local Court (which was tendered as part of the Crown material) indicates that the plea was entered on 23 November 2014, that date is clearly incorrect.
The facts of the assault are set out in a Statement of Facts which forms part of the Crown bundle. It is appropriate, in the circumstances, that I set them out in full:
"The accused, Deborah GRANT, and victim, Dennis GILL, commenced a domestic relationship about 15 years ago. This relationship lasted for several years and came to its demise about nine years ago. This relationship has produced two female children aged 12 and 11 years of age. The accused is associates with Adee BARSHA, the co-accused in the matter.
Around 11.45am on Monday 7th of October 2013, the victim has taken the couples (sic) two children to the accused's address, 3 Callistemon (sic) in Casino for a visitation. At this time, the co-accused Adee BARSHA was also at the location. Upon arriving at the accused's address the two children have exited the vehicle and approached the residence. The accused has exited the residence and stood on the verandah yelling abuse at the victim about an incident that happened several weeks ago.
The accused and the victim have engaged in an argument before the victim exited his car and stood on the roadside. The victim has requested the two children get back in the car, the children have complied and got back in the car. The accused has walked up to the victim and grabbed hold of his T-shirt causing the right hand side of it to tear. The accused has then punched the victim to the top of his head with a closed fist. In response the victim has pushed her to her waist forcing her back. This has caused the accused to take several steps back but not fall back.
The victim has then placed himself back in his car and the co accused has exited the house and ran towards the victim whom was still seated in the driver's seat of his car at this time. The co accused punched the victim to the right hand side of his mouth through the open car window. This has caused the victim to feel pain and caused bleeding to his lips. When the co accused has punched the victim the victim's upper false teeth have broke (sic) in half.
The victim has left the location in his car to avoid further confrontation.
A short time later the victim has called police. Police have attended 3 Callistemon Place Casino and approached the accused. The accused stated 'He was in my face so I punched him.' The victim has attended Casino Police Station at this time and presented with visible injuries. A statement was obtained from the victim and his injuries photographed.
At 1.45 pm on Monday 17th October 2013 the co accused has entered Casino Police Station to express concern about the situation. The co accused was informed he was under arrest for assault and breach of bail conditions. The co accused was cautioned in relation to his right to silence and he indicated he understood.
At 2.55 pm on Monday 7th October 2013 the accused entered Casino Police Station and was advised she was under arrest for assault. The accused was formally cautioned and reminded of her rights.
Whilst the co accused was in police custody he was afforded the opportunity to speak with Aboriginal Legal Aid. The co accused was subsequently advised not to be formally interviewed in relation to the matter. The co accused took this advice and was not interviewed.
The accused was verbally abusive and continued yelling and swearing at police whilst in police custody. As such the accused was not afforded an opportunity to be interviewed.
The co-accused and accused were subsequently charged with the matters that subsequently came before the local court."
A Pre-sentence Report was prepared in relation to the Local Court proceedings, which forms part of the material which has been tendered before me. Whilst I do not propose to detail the entirety of that report, it records that the offender did not agree with the police facts in their entirety. The report also indicated that in the opinion of the author, the offender showed very little insight into her offending behaviour, and sought to minimise and justify her actions.
Following the issue of the call-up notice, the matter came before me on 23 May 2014. On that occasion the offender did not appear although she was legally represented. I was informed on that occasion that she had only just received the call-up notice and was seeking Legal Aid. Since that time, the matter has followed something of a long and tortuous path before me, which I shall briefly outline.
After the matter was before me on 23 May 2014, it was next before me on 30 May 2014, at which time the offender appeared and was represented. It was then adjourned for hearing until 17 June 2014.
On 17 June 2014 Mr Ozen of counsel appeared on behalf of the offender. He called the offender to give evidence, in the course of which she asserted, in effect, that although she had pleaded guilty before the Local Court to the assault she was in fact not guilty of that offence. The transcript of proceedings on that day reflects the fact that the Crown ceased his cross-examination of the offender, principally because of a fear that if he did not do so, the offender's position might be prejudiced. As a consequence of what occurred on that occasion, I adjourned the proceedings so as to allow the offender to obtain legal advice in relation to her position.
The matter then came back before me on six subsequent occasions between 14 July 2014 and 30 March 2015. Within that period, and specifically on 20 August 2014, the offender made an application in the Local Court that she be granted leave to withdraw the plea of guilty that she had previously entered to the charge of assault. That application was refused by the Magistrate. The offender then made an application to this Court for judicial review of the Magistrate's decision. Those proceedings were dismissed by Johnson J on 2 April 2015: Grant v The Local Court of New South Wales & Anor [2015] NSWSC 356.
Those issues having been determined, the matter comes before me today to determine what action should be taken in relation to the offender's breach of her bond. I have spent some time setting out the history of the matter so as to explain what might otherwise appear to be an inordinate and unjustifiable delay in the matter being resolved. I make it clear that I do not ascribe any blame for that history to any party. In particular, I make it clear that I ascribe no blame to the offender. She was, in all of the circumstances, entitled to take the course that she took, notwithstanding that it was ultimately unsuccessful.
The Crown has previously tendered a bundle of documents containing (inter alia) the factual material relating to the assault as well as some relevant authorities. There is also a Pre-sentence report before me dated 11 June 2015 along with three other documents pertaining to the offender's children, namely two reports of Dr Christopher Ingall and one of Dr Kate Davies. Those reports detail the various medical conditions from which two of the offender's children suffer.
The offender's appearance before me arises by virtue of the operation of s. 98 of the Sentencing 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.
(1A) If the offender fails to appear, the court may:
(a) issue a warrant for the offender's arrest, or
(b) authorise an authorised officer to issue a warrant for the offender's arrest.
(1B) If, however, at the time the court proposes to call on an offender to appear before it, the court is satisfied that the location of the offender is unknown, the court may immediately:
(a) issue a warrant for the offender's arrest, or
(b) authorise an authorised officer to issue a warrant for the offender's arrest.
(1C) For the purposes of subsection (1) (c), a court is of superior jurisdiction to the court with which an offender has entered into a good behaviour bond if it is a court to which the offender has (or has had) a right of appeal with respect to the conviction or sentence from which the bond arises.
(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.
In Director of Public Prosecutions v Cooke & Anor [2007] NSWCA 2; (2007) 168 A Crim R 379, Howie J made a number of observations about those provisions which are relevant for present purposes.
Firstly, his Honour noted (at [14]):
"... what the court is required to consider is whether there are good reasons to excuse the failure to comply with the conditions 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."
Secondly, his Honour observed (at [16]) that if there are extenuating circumstances of sufficient importance to explain the behaviour giving rise to the breach, it is open to the court to exercise its jurisdiction to take no action.
Thirdly, his Honour observed (at [17]) that there was a "live issue" regarding the extent (if any) to which the Court "can have regard to matters other than the behaviour giving rise to the breach in determining whether to excuse the breach, such as the impact upon the offender of the consequences of the breach."
Fourthly, his Honour observed (at [24]) that the suspension of a sentence of imprisonment was properly categorised as an act of mercy designed to assist an offender's rehabilitation, or to benefit the offender for some other purpose, on the understanding that if the offender did not fulfil the conditions of the bond the sentence would be imposed. His Honour observed that in these circumstances, and generally speaking, there can be no unfairness in requiring the offender to serve the sentence when the obligations under the bond have been breached.
Having made reference to the importance of recognising that there are two distinct discretions being exercised in circumstances such as these, his Honour finally observed (at [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;..."
I referred a moment ago to the reference by Howie J to what he described as the "live issue" concerning the extent to which a court can have regard to matters other than the behaviour giving rise to the breach in determining whether to excuse it. In the course of making that observation his Honour made reference to an earlier decision of Hidden J in Director of Public Prosecutions v Burrow [2004] NSWSC 433. In that case, Hidden J observed (at [25]) that where an offence is relatively minor, it might be appropriate to weigh its gravity against the consequences of revocation of the bond, particularly when the suspended sentence is a long one. His Honour went on to observe (at [26]) that an assessment of the seriousness of the offence constituting the breach may require that regard be had to the offender's subjective circumstances. However, his Honour expressed the view that provisions of s 93(3)(b) of the Sentencing Act did not excuse the breach only by reason of such subjective circumstances. His Honour also stated that it was not open to the Court to have regard to the severity of the penalty to be imposed for the fresh offence.
In Cooke Howie J also referred to the observations of King CJ and Perry J in R v Marston (1993) 60 SASR 320. At [21] his Honour observed that two matters should be emphasised arising from the decision in Marston:
"...firstly, the determination under s 98(3)(b) should be made bearing firmly in mind that generally a breach of the conditions of the bond will result in the offender serving the sentence that was suspended and, secondly, the principal consideration, if not the only one, is upon the conduct giving rise to the breach."
Counsel for the offender did not suggest that the offender's failure to comply with the conditions of the bond was trivial in nature. However, he submitted that there were good reasons for excusing it. He submitted that the offence of assault was committed by the offender in "unusual circumstances", in which the catalyst for the offending was the offender's concern for her children. It was submitted that the offending constituted a reaction on the part of a person who was simply "not thinking" at the time.
It was submitted by counsel for the offender that the evidence established that the offender has been responding well to treatment, and that her use of illicit drugs had been reduced. It was further submitted that but for the assault which gives rise to the breach of the bond, the offender's response to treatment had been generally positive.
In all of the circumstances, counsel described the offending which constituted the breach of the bond as a "one off". Counsel also addressed me in relation to the medical issues impacting upon the offender's children, to which I have already made passing reference. He submitted that the medical evidence which was before me established that the offender's children were in need of continuing and ongoing assistance at a significant level. He submitted that, in all of these circumstances, the breach was explained.
Ultimately, in the event that I was to come to the view that there were no good reasons for excusing the offender's failure to comply with the conditions of her bond, and if I concluded that a sentence of imprisonment was appropriate, counsel submitted that I ought refer the offender for an assessment as to whether or not any such sentence could be served by way of home detention.
In short, the Crown submitted that there were no good reasons to excuse the breach of the bond. In advancing that submission, the Crown took me to various aspects of the facts of the offending which I have outlined, as well as to various aspects of the Pre-sentence Report, which was provided at the time of offending. However, given what was submitted to be the unusual circumstances surrounding this matter, the fact that there had been no further offending, and the circumstances impacting upon the offender's children, the Crown submitted that a sentence of imprisonment to be served by way of home detention was one which was within the proper range of sentencing discretion.
I have outlined the facts of the assault. On any view, that offending was serious. Whilst one can, to some extent, be sympathetic to the offender's concern for her children, such concern, even when taken at its highest, does not constitute good reasons for excusing her failure to comply with the conditions of the bond. In these circumstances, and having regard to the provisions of s 98(3)(b) of the Sentencing Act, I must revoke the bond.
I have already made reference to the various observations of Howie J in Cooke. In particular, I have made reference to his Honour's observations as to the reasons for which a suspended sentence is generally imposed, and to his reference to the existence of an understanding that if an offender does not fulfil the conditions of a bond the sentence which was suspended ought be imposed. In my view, those observations are particularly apt in the circumstances of the present case. There is no reason, in my view, why a sentence of imprisonment for 12 months ought not be imposed upon the offender. There is, however, another consideration which involves the exercise of a separate discretion, namely how any such sentence should be served.
Mr Ozen submitted that if I came to the view that the bond should be revoked and a sentence of imprisonment imposed, I should refer the offender for an assessment as to her suitability for home detention. The Crown did not dissent from that general approach. Candidly, the Crown conceded that if I were to come to the view urged upon me by Mr Ozen, a sentence of imprisonment to be served by way of home detention would be within the bounds of an appropriate exercise of my sentencing discretion.
There are factors at play in this case which are significant and which bear directly on the exercise of my discretion. At the forefront of those factors are the matters which impact on the health of the offender's two young children. It is not necessary for me to recount in detail the circumstances of those children or the illnesses from which they suffer. Those matters are set out in full in the medical evidence to which I have already made some brief reference. They are significant. The children require not only medical attention, but attention and supervision by the offender in her capacity as their mother. It is largely that factor which has led me to conclude that I should exercise my discretion to order that the sentence that I have determined is appropriately served by way of home detention, subject to the offender being assessed as suitable. That will require a further adjournment of the proceedings, so as to permit the offender to undergo an assessment as to her suitability. I am told that such assessments take some weeks and the period of the adjournment will be determined accordingly.
For those reasons, I make the following orders:
1. The bond imposed upon the offender pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on 7 December 2012 is revoked.
2. Pursuant to s 80 of the Crimes (Sentencing Procedure) Act 1999 I refer the offender for an assessment as to her suitability to serve the sentence that I have deemed is appropriate by way of home detention.
The offender is granted bail subject to the following conditions:
1. To be of good behaviour;
2. To reside at ****************; and,
3. To make contact with the Probation and Parole Service at Murwillumbah regarding the assessment for home detention within 72 hours of today.
I make a further order that the report in relation to the offender's suitability for home detention be provided to my Associate no later than 22 July 2015.
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Decision last updated: 24 July 2015