R v James Mervyn HILLHOUSE

Director of Public Prosecutions v Burrow [2004] NSWSC 433 CASES CITED: Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379 R v Marston (1993) 60 SASR 320

PARTIES: Regina James Mervyn Hillhous

SOLICITORS: Ms White for the ODPP Ms Miles for the offender

These appeals against sentences by James Hillhouse include appeals against the revocation of bonds. Magistrate Dunlevy sitting in the Broken Hill Local Court on 22 September 2009 revoked good behaviour bonds which had been imposed upon James Hillhouse in the past. They were not good behaviour bonds imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999 but imposed under s 12. This means that the bonds were accompanied by sentences of imprisonment.

The issue raised by Ms Miles who appears for Mr Hillhouse is whether under s 98(3) of the Crimes (Sentencing Procedure) Act I should find that there are good reasons for excusing her client's failure to comply with the conditions of the good behaviour bonds which accompanied the suspended sentences.

Mr Hillhouse had received a suspended sentence on 17 February 2009 of seven months at the Broken Hill Local Court for driving whilst disqualified. He had committed that offence on 30 September 2008. A week or so later in the same court he received three more suspended sentences accompanied by good behaviour bonds. They were imposed on 24 February 2009 for three offences which were all committed earlier that month, on 8 February 2009. There are two offences of reckless damage to property and an offence of an assault. The learned magistrate imposed a seven month suspended sentence for each of the two offences of reckless damage to property and a nine month suspended sentence of imprisonment for the assault.

I should have said earlier that when he first appeared, when he got his first bond on 17 February 2009 that accompanied a seven month sentence of imprisonment which was suspended.

Mr Hillhouse found himself back in the Broken Hill Local Court on 22 September 2009. All of the good behaviour bonds that I have referred to were revoked by Magistrate Dunlevy which meant that the prison sentences were activated.

It is from the decision of His Honour Magistrate Dunlevy to revoke those good behaviour bonds that Ms Miles on behalf of her client appeals.

When an offender appeals to the District Court against a sentence imposed in the Local Court a District Court judge hears the case anew from the start. It is for the District Court judge to make up his or her mind as to what the appropriate penalty is.

Ms Miles needed to overcome a hurdle in asking me not to revoke the bonds which is provided by s 98 of the Crimes (Sentencing Procedure) Act. Subsection (3) of that law says: "In the case of a good behaviour bond referred to in s 12, a court must revoke the bond unless it is satisfied (a) that the offender's failure to comply with the conditions to 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." 9. Before considering what it was that brought about the breach of the bond by Mr Hillhouse I should note that Ms Miles does not argue that those circumstances were trivial in nature. What she does argue is that there are good reasons for excusing her client's failure to comply with the conditions of the bond. It is therefore necessary to say what happened that brought Mr Hillhouse back to court in September this year.

The events giving rise to his reappearance in court happened on 8 September 2009. The police view of what happened is contained in exhibit A which includes a summary by the police of what happened on that day. At about 7:30 on 8 September 2009 police saw a car being driven along Wyman Street, Broken Hill. It was travelling at about thirty kilometres an hour in a zone where the speed limit was fifty kilometres an hour. It travelled slowly for about twenty seconds and then turned sharply to the right. The police stopped the driver and gave him a random breath test. The driver turned out to be Mr Hillhouse. He admitted that he did not have a licence. Police noticed that he smelt of alcohol so they gave him a roadside test which was positive, they arrested him and took him back to the police station where they found his reading was 0.105. He was therefore charged with driving with the midrange prescribed concentration of alcohol. Mr Hillhouse did not have a licence because he had been disqualified from driving for some time so he was also charged with driving whilst disqualified. Police noted that Mr Hillhouse said about his drinking, "I was only drinking at home." They did note that he was unsteady on his feet and had glazed eyes and slurred speech. They thought he was moderately affected by alcohol. At the time that they detected him police said the traffic was light, street lighting was on and the weather was fine. It was a dry bitumen road in a residential area.

Mr Hillhouse lived at that time in Wyman Street, Broken Hill where the offence occurred. His account of what happened is contained in exhibit 2 which is a letter written by him to the court. He explained that he had had an argument some days beforehand with a neighbour and feared for the safety of his car because the argument concerned damage to the neighbour's car. He decided that he would clean out his garage and put the car in there so that it could be secured. His brother-in-law helped. He said they consumed "roughly three beers." He said halfway through the moving he was intercepted by Broken Hill police. Before the magistrate and part of exhibit A was a letter from Mathew Stanley who, I infer, was Mr Hillhouse's brother-in-law. He said they had a couple of beers and cleaned out the garage. Mr Stanley went home at 7 or 7.30 and when he came back home the police were arresting Mr Hillhouse. Mr Stanley said that Mr Hillhouse drove the car from outside the garage to the median strip to clean the rest of the garage. In addition as part of exhibit A there is a letter from Mr Hillhouse's mother who said that the car belonged to Mr Hillhouse's wife and that her son was worried that the neighbour would cause damage to the car. He had just spent a lot of money on the car to have it ready for his wife when she got her licence.

There is some inconsistency between Mr Hillhouse's account of moving the car and Mr Stanley's, although the inconsistency seems to be minor. Both they and Mr Hillhouse's mother focus on the fact that the two men were cleaning out the garage and the movement of the car was related to the cleaning out of the garage.

Ms Miles argues that those circumstances amount to good reasons for excusing her client's failure to comply with the conditions of the bond. During the course of the argument I was referred to a decision of the Court of Appeal in the Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379. The principal judgment was delivered by Howie J with whom Sully J and Price J agreed. The court considered the application of the section which Ms Miles is relying upon.

There are two aspects of that consideration which Ms Miles draws my attention to. One is the nature of the conduct which might excuse an offender's failure to comply with the conditions of the bond. Howie J said at 384 ([16]) that "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." His Honour gave examples of illness or a death in the family to illustrate an example of a failure to report for supervision. If the breach was a further offence an excuse might involve extenuating circumstances leading to the behaviour. An example given by his Honour "might be driving under the influence of alcohol in an emergency situation." Importantly his Honour immediately said after that the following: " 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." 15. Ms White, who appears for the respondent Director of Public Prosecutions, argues that the emphasis given by the Court of Appeal to the kind of conduct which might excuse a failure to comply with the bond have a flavour about them of necessity or urgency. There was, she argues, in this case no aspect of urgency let alone necessity. I think she is right in that submission. There was clearly no need for Mr Hillhouse, himself, to move the car. Somebody who was sober and with a licence could have moved the car or he could have arranged for the car to be protected in some other way. But to my mind the general description of Howie J of the kind of conduct which might provide good reasons for excusing a failure to comply are broader than those encompassed by his Honour's example because his Honour said what I am to consider is "whether the conduct represents a contumelious act of defiance or disregard of the conditions of the bond." To my mind this act of moving the car either down the road or around the block to enable it to be put into the garage, was, as Mr Hillhouse's mother described, a stupid thing to do but did not amount to a contumelious act of defiance or disregard of the bond. Had the offence occurred further away from Mr Hillhouse's home I would have regarded it as such an act of defiance but the fact that it occurred near his home supports the account which he and the others gave of it being a question of convenience and protection of his car and a misguided decision to drive it a short distance to secure it. They amount, in my opinion, to good reasons for excusing his failure to comply with the conditions of the bond.

A second argument put forward by Ms Miles turns on some discussion by Howie J in the Court of Appeal in Cooke of a decision by Hidden J in the Director of Public Prosecutions v Burrow [2004] NSWSC 433 and the South Australian decision of R v Marston (1993) 60 SASR 320. In Burrow Justice Hidden had thought it appropriate if the breaching behaviour was a relatively minor offence "to weigh its gravity against the consequences of revocation of the bond, particularly where the suspended sentence is a long one." Howie J and his Honour refer to the decision by the South Australian Court of Criminal Appeal in Marston to support that proposition. Howie J thought it "unnecessary in order to determine the present matter to form a decided view on whether the approach taken in Marston should be followed in this State in applying s 98(3)(b)." His Honour noted two important distinctions between the jurisdictions. A suspended sentence in this State can be for no longer than two years whereas in South Australia it could be three years. More significantly, as his Honour remarked "the impact of the revocation of the bond can be ameliorated in this State by ordering that the sentence that is enlivened by the breach be served by periodic detention or home detention."

His Honour concluded that the determination under s 98(3)(b) - despite Marston's case - "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." His Honour went on to observe that "the principal consideration, if not the only one, is upon the conduct giving rise to the breach."

White pointed to passages in Cooke which emphasised the likelihood of suspended sentences coming into disrepute if courts fail to act where there had been a clear breach of conditions. The Court of Appeal had not finally determined whether to follow Marston or not. Ms Miles argued that Marston should be followed as Hidden J did and that it is relevant in the circumstances of this case. She pointed out - which I think is common ground - that periodic detention is not an available sentencing option in this part of New South Wales nor is home detention. That means, Ms Miles argues, that the consequences of the breach of a suspended sentence cannot be ameliorated in the ways that Howie J referred to. Ms White argued that even if that were an acceptable point, the consequences in this case were not so bad so far as Mr Hillhouse was concerned or not inappropriate because his history of driving offences -which is very bad - is such that the sentences of full-time custody were appropriate. In this case, Mr Hillhouse's driving record includes offences of driving whilst disqualified but the PCA offence is the only one involving alcohol. His other offences did have their origin in alcohol consumption which has been a problem for Mr Hillhouse for many of his twenty-five years. He has received one sentence of periodic detention on a previous occasion.

It seems to me that this is the sort of case where if one looks at the objective seriousness of the breaching behaviour, namely, effectively but foolishly driving around the block in one's local area, then it is a matter where a judge or magistrate may well consider periodic detention or home detention to be an appropriate penalty. I, therefore, do take into account the consequence of a revocation of the bond being that the sentence which would follow from the revocation would be disproportionate to the nature of the offending behaviour giving rise to the breach. A foolish and thoughtless act brought about a series of sentences of some months full-time detention when they might have attracted sentences of periodic detention.

Independently of taking into account the consequences of the failure to comply, I have already found, based upon the conduct alone, that it constitutes good reasons for excusing Mr Hillhouse's failure to comply with the conditions of the bond. My taking into account the consequences of revocation of the bond is an additional reason for excusing Mr Hillhouse's failure to comply.

Accordingly, insofar as the appeals are from the decisions of the learned magistrate to revoke the bonds imposed under s 12 of the Crimes (Sentencing Procedure) Act, I determine these appeals against sentence as follows.

Under s 20 of the Crimes (Appeal and Review) Act 2001 I determine each of the appeals against sentence by setting aside the sentences of the learned magistrate. Instead of those sentences, under s 98(3)(b) I am satisfied that there are good reasons for excusing Mr Hillhouse's failure to comply with the conditions of the bond and in accordance with s 98(2)(a) I decide to take no action with respect to the failure to comply.

HIS HONOUR: Now, that leaves us at lunchtime so I will let you think about the next stage, Ms Miles and Ms White. I know that took a while but you raised an important point. You both argued it well and your arguments required an appropriate judgment.

HIS HONOUR: I think your client, Mr Hillhouse, can be taken back into custody and we will finish his case after lunch.

MILES: Given your Honour's findings in relation to the previous application, a part of this appeal, together with some of your Honour's comments in relation to the nature of the offence, and your Honour's understanding as to how the offences came about, I would be suggesting to your Honour that what is appropriate in all of the circumstances is a s 9 bond.

HIS HONOUR: That's right, because I have disposed of all the s 12 matters haven't I by not taking any action?

HIS HONOUR: So that leaves us with mid range and the drive whilst disqualified.

MILES: Unless I can assist the court any further, your Honour.

HIS HONOUR: He hasn't had a drinking conviction before, that's right?

HIS HONOUR: He's had drive whilst disqualified before and had periodic detention in 2004.

MILES: I should also indicate that clearly your Honour would have the time that Mr Hillhouse has spent in custody to take into account.

MILES: He's been in custody - prior to receiving bail he spent 16 days - I withdraw that--

MILES: Yes, I do withdraw that, I apologise. He's been in custody since 8 September continuously, and the 16 days is completely regarded, it would go to the bonds. He's been in since September, so your Honour could take that into account.

HIS HONOUR: I see the point, I'm just looking at exhibit A, the 16 days is related to the bond.

HIS HONOUR: Or the s 12 bonds. He's been in custody relating to these matters from 8 September 09 to 3 December 09. It's nearly three months.

MILES: Yes, I am not asking for your Honour to take that time into account and impose custodial penalties but taking it into account to justify the position of a s 9 bond.

WHITE: Well your Honour has already made findings in relation to the objective seriousness of those offences, so I don't have anything to say, and all of the suspended sentences have expired.

I have set out in my judgment on the appeals from the revocation of the bonds associated with suspended sentences, the circumstances of Mr Hillhouse committing the offence of driving with the middle range of prescribed concentration of alcohol whilst disqualified. I regard those offences as being at the low end of the scale of objective seriousness because of the circumstances which I have referred to previously in the judgment.

Ms Miles who appears in this appeal as well argues that - given the findings about the objective seriousness of those offences and taking into account that her client has served almost three months in custody, now related exclusively to these offences - I should impose a penalty in the form of a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. Ms White acknowledges the force of that submission given the finding which I made regarding the objective seriousness of the offences.

The two offences were committed on 8 September 2009. One was driving with a mid range of prescribed concentration of alcohol, the other was driving whilst disqualified. The circumstances of the offences have been described earlier in my judgment. I propose to accept Ms Miles' submission.

Accordingly under s 20(2) of the Crimes (Appeal and Review) Act 2001, I determine these appeals against sentence by setting aside the sentences of the learned magistrate. Instead of those sentences and instead of imposing sentences of imprisonment, I make an order in respect of each offence that Mr Hillhouse enter into a good behaviour bond for twelve months.

HIS HONOUR: Now any conditions? Does he need to be supervised or not, any other conditions?

MILES: I'm not seeking supervision, your Honour. If I can indicate from the bar table, I've been advised that Mr Hillhouse's job is ready and waiting for him. He is now accepted into this rehabilitation centre which he wishes to consider. I am not asking that there be supervision from Probation and Parole on the basis that he clearly has plans. From the evidence I would have been making submissions in relation to his progress towards rehabilitation. He understands where the problems are and he knows that there is assistance if he wants to take up that opportunity, but I believe he might be considering full time work for a period of time. It's now there available to him.

The only condition of the bond is that he be of good behaviour for twelve months.

MILES: I believe there are the standard conditions that will be imposed. He must notify the court if there is a change of address. I think there might be something else.

The conditions are that he be of good behaviour, that he appears before this court if called upon to do so at any time during the term of the bond, that he notify the registrar of this court of any change of his residential address. HIS HONOUR: Anything else?

MILES: No. WHITE: Would your Honour confirm the orders for disqualification? HIS HONOUR: Do I need to do that or are they automatic? WHITE: Well to avoid any doubt, I would ask your Honour to simply make an order just confirming them, yes, because in the case of the mid range PCA he's received a 12 month disqualification, where the automatic disqualification is three years.

In respect of the offence of mid range PCA, I direct that the period of disqualification be for twelve months. In respect of the offence of driving whilst disqualified, I direct that the period of disqualification be two years.

HIS HONOUR: Now I haven't made any orders about the disqualifications in respect of the bond matters?

HIS HONOUR: Both periods are to be cumulative and accumulative on any earlier periods of disqualification.

Now, Mr Hillhouse, I have agreed with Ms Miles on your drink driving offence and the drive whilst disqualified where you drove around the block, and I have given you a twelve month bond. You will enter into that this afternoon and you will be released on that good behaviour bond. The conditions are that you have got to stay out of trouble for twelve months from today. Do you understand?

HIS HONOUR: You have got to write to the registrar of this court if you change your residential address.

HIS HONOUR: And if you get a notice asking you to come back to court, you have got to come back to court. Do you understand that?

If you breach your bond, breach any of those conditions, you will come to court before me and I could revoke the bond and sentence you to imprisonment or some other penalty, or vary the conditions of the bond or I may decide to take no action, but that's what happens if you breach the bond. Now what happens to you next is up to you, how you conduct your life. Obviously you are looking at your life. I was impressed by what you had to say in the witness box, but it's over to you now as to what you do. Good luck.

HIS HONOUR: You have got to fill in that form somewhere. Now anything else?

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