Part 4 of the Act deals with terms of imprisonment.
15 Quite clearly the offender's failure to comply with the conditions of the bond was not trivial in nature and s 98(3)(a) does not apply. The contrary was not submitted.
16 The only reasons offered for the offender's breaches of the conditions of the bond were her amphetamine addiction and the difficulty she has in participating in counselling. I am not persuaded that these constitute "good reasons" within the meaning of s 98(3)(b). (DPP v Burrow & Anor [2004] NSWSC 433, DPP v Cooke & Anor [2007] 168 A Crim R 379).
17 The fact of the offender's pregnancy is not a matter which I can take into account as a "good reason" for excusing the offender's failure to comply with the conditions of the bond. In Cooke, Howie J said:
"[34] Hidden J in Burrow held that the subjective circumstances of the offender are generally irrelevant in determining whether there are good reasons to excuse the breach under s98(3)(b) except to the extent that those subjective circumstances are relevant to a consideration of the breach itself. … But subjective features of the offender at the time of the breach proceedings are irrelevant to the decision whether good reasons exist to excuse the breach. They may, of course, have some role to play in what order is made after revocation when determining whether the consequential sentence is to be served by way of fulltime custody, or an available alternative and the length of the non-parole period to be imposed. But they cannot affect the decision whether to revoke the bond."
18 On the facts of this case it seems to me inevitable that the s 12 bond must be revoked and I do so.
19 The next question is as Howie J put it, what is an appropriate "consequential sentence". In that regard it needs to be kept in mind that the offender is currently serving a sentence of periodic detention in respect of the break enter and steal offence.
20 I fully reviewed the offender's circumstances when I passed sentence on 13 October 2006. There has been little change since that date and to the extent that there has been a change, I have referred to that in these remarks. Apart from the break enter and steal offence and her amphetamine addiction, the most significant change to her circumstances is her current pregnancy. That latter matter has troubled me when considering what is to be done with the offender and I have endeavoured to build some leniency into the course which I have adopted.
21 In addition to the circumstances of the offence of manslaughter, for which the offender now has to be sentenced, the Court needs to take into account that sentence is to be passed as a result of breaches of a s 12 bond. In R v Marston (1993) 60 SASR 320 at 322 King CJ said, in relation to such circumstances:
"I repeat what I said in R v Buckman (1988) 47 SASR 303 at 304:
"There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited and the Court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non law abiding ways. The Court will not lightly interfere with the ordinary consequence of a breach of the recognisance."
It is of great importance that the Courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders."
22 That approach was endorsed by Howie J in Cooke as follows:
"[23] With respect I would endorse those sentiments. There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved."
23 On the facts of this case I see no reason to depart from the sentence which I previously passed. Accordingly I propose to impose a sentence of imprisonment for a period of 2 years with a non-parole period of 1 year. I have allowed a parole period of 1 year in view of the offender's pregnancy and to have regard to her need for rehabilitation in respect of her amphetamine addiction. These matters constitute special circumstances. I propose that the sentence be partially concurrent with the sentence she is already serving in respect of the break enter and steal offence.
24 As I noted in my previous remarks on sentence and in these remarks, the offender spent 90 days in custody before being released on bail. I propose to backdate the commencement of this sentence to allow a credit to the offender for the period which she spent in custody.
25 Lacy Lee Jukes you are sentenced to imprisonment for a period of 12 months to commence on 29 November 2007 and to expire on 28 November 2008 with a balance of term of 12 months to expire on 28 November 2009. The earliest date you will be eligible for parole is 28 November 2008.
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