R v Jurisic Matter No 60131/98 [1998] NSWSC 423

Supreme Court of NSW|1998-10-12|Before: Spigelman CJ, Wood CJ, Sully J, James J, Adams J, John J, Per Wood CJ

The application of this principle to Crown appeals against sentence is well established, although its incidents have not been authoritatively articulated. This is not the case in which to explore the limits of its application.

The relevant limit for present purposes is as stated by Gleeson CJ:

"... when re-sentencing a respondent on a successful Crown appeal this Court gives weight to the circumstances of double jeopardy involved in a Crown appeal by imposing a sentence that is the least sentence that could properly have been imposed upon the respondent at first instance." Rose (Mark Anthony) NSWCCA 23 May 1996, 3.

The evidence before the Court established that the respondent had abandoned responsibility for his own conduct. The effect on his driving ability of his ingestion of cocaine was plainly material. Although, he did suffer some head injuries, his conduct immediately after the accident was almost euphoric. His appearance also plainly indicated that the effect of the drug on him was substantial. The relevant aggravating factor was present to a material degree.

In my opinion, the "least sentence" in the present case was two years. That is the total sentence which Sully J proposes.

Her Honour found "special circumstances" to exist which justified a longer additional term. On appeal the element of double jeopardy, particularly as judgment is to be delivered almost at the expiry of the original minimum term, is also a "special circumstance". I agree with his Honour's proposed minimum and additional terms. I agree with the orders proposed by Sully J.

The particular circumstances of this case and the principle of double jeopardy result in this particular offender receiving a penalty of lower severity than should have been imposed at trial. This has, to a certain extent, become a test case. The important thing is to ensure that trial courts consistently impose sentences which will serve as a significant general deterrent to such conduct. That is the objective of the promulgation of the above guidelines.

WOOD CJ at CL: I have read in draft the judgments of Spigelman CJ and Sully J. I agree with the reasons appearing in the judgment of Spigelman CJ, for allowing this appeal, and generally with those appearing in the judgment of Sully J. I do not consider it necessary to determine whether the learned sentencing Judge fell into the error of principle identified by Sully J, in relation to the way she went about determining the sentence to be imposed. I am satisfied, having regard to the facts, that the case was one calling for a sentence in excess of that for which an order for home detention was available, and that appellable error was shown in the imposition of a sentence that was manifestly lenient.

I also express my entire agreement with Spigelman CJ, concerning the utility of, and justification for, the identification by this Court of judgments which it considers might stand as guideline judgments. The Court has, in the many instances identified and in several other areas, over the years endeavoured to lay down sentencing principles for particular classes of case where sentences reflecting a significant element of general deterrence are required, or where non custodial options are inappropriate. It appears that sometimes these principles are lost or that their significance is overlooked, in the volume of appellate decisions handed down and in the pressures imposed on trial Courts to dispose of increasingly busy criminal lists.

By tagging selected decisions as guideline judgments, the Court is not to be taken as usurping the function of the legislature, or as inappropriately intruding into the exercise of the sentencing discretion reserved to trial Judges. Rather, what is intended is for the Court of Criminal Appeal to highlight the sentencing principles which fall for it to determine, in a way that might assist trial judges, the DPP and trial Counsel, and reduce the occasion for that degree of inconsistency or departure from principle that is an indicator of injustice.

I agree with the orders proposed by Sully J, and with the reasons why the discretion relevant for a Crown appeal against sentence ought not to be exercised in the respondent's favour, in this case.

SULLY J: On 16 September 1997 Mr. Christopher Tom Jurisic, ["the respondent"], pleaded guilty in the Local Court at North Sydney to three charges of dangerous driving occasioning grievous bodily harm. Upon those pleas, the respondent was committed, pursuant to s.51A of the Justices Act 1902 (NSW), for sentence to the District Court. The respondent appeared on 5 December 1997 in the District Court and before her Honour Judge Tupman. The respondent adhered to his pleas of guilty, and her Honour sentenced him accordingly.

Each of the three offences charged against the respondent contravened s.52A(3)(a) of the Crimes Act 1900 (NSW). Any such contravention is punishable by a statutory maximum penalty of imprisonment for 7 years. The offence entails, as well, and by reason of s.10A(2)(c) of the Motor Traffic Act 1909 (NSW) an automatic disqualification, for a period of 3 years, from holding a driver's licence. A Court of competent jurisdiction may by order reduce that automatic period of disqualification.

The victims of the offences were three members of one family. One victim was the father of the family, Mr. James Gough Murphy. The other two victims were children of Mr. Murphy and his wife: they were named Anna Jane Murphy and Clare Louise Murphy.

On 5 December 1997 her Honour received evidence, and heard submissions, on sentence. Her Honour, as to the offence concerning Mr. James Murphy as victim, formally convicted the respondent, sentenced him to imprisonment for 18 months; apportioned that term of imprisonment between a minimum term of 9 months and an additional term of 9 months; and made an order, pursuant to s.9 of the Home Detention Act 1996 (NSW) for the assessment of the respondent as to his suitability to serve his sentence of imprisonment in home detention.

In due course, the respondent was assessed by the relevant authorities as suitable for home detention. Accordingly, and on 28 December 1997, her Honour formally sentenced the respondent, in connection with the offence of which Mr. Murphy was the victim, to imprisonment for 18 months, to comprise a minimum term of 9 months commencing on 28 January 1998 and expiring on 27 October 1998 and to be served by way of home detention; and an additional term of 9 months to commence on 28 October 1998 and to expire on 27 July 1999, and to be served by way of home detention. Her Honour disqualified the respondent from holding a driver's licence for a period of 1 year from 28 January 1998.

In connection with the other two offences charged against the respondent, her Honour deferred sentence in each case on condition that the respondent enter a recognisance, himself in the sum of $1,000, to be of good behaviour for a period of 2 years and to accept the supervision of the Probation and Parole Service. These orders were made pursuant to s.558 of the Crimes Act 1900 (NSW).

On 23 March 1998 the Director of Public Prosecutions gave notice of appeal on the grounds that the sentences thus imposed by her Honour in respect of the three matters with which her Honour was dealing, were inadequate.

The appeal came on originally for hearing on 15 July 1998. The Court, as then constituted, was of the opinion that the appeal raised matters of significant public importance with regard to the proper construction and application of the Home Detention Act 1996 (NSW); and the appeal was adjourned, accordingly, so that a Bench of five Judges could be constituted for the purpose of hearing it. In due course, the Court as now constituted was convened; and the appeal was heard before that reconstituted Bench on 12 August 1998.

At the hearing of that appeal, two preliminary points arose: first, whether the Notice of Appeal, grounded as it was in s.5D of the Criminal Appeal Act 1912 (NSW), was competent to put in issue before the Court the order made by Judge Tupman for the service by way of home detention of the sentence of imprisonment imposed by her Honour upon the respondent; and secondly, whether there had been an unconscionable delay in the bringing by the Director of Public Prosecutions of the appeal.

As to the first point, s.5D of the Criminal Appeal Act 1912 (NSW) enables a Crown appeal to this Court "against any sentence pronounced by the Court of trial in any proceedings to which the Crown was a party". This reference to the Crown is sufficient to embrace the Director of Public Prosecutions: see s.5D(2). A "sentence" is defined by s.2(1) of the Criminal Appeal Act as including "any order made by the court of trial on conviction with reference to the person convicted". This is, in my opinion, sufficient o encompass an order for the service by home detention of a sentence of imprisonment.

As to the second point, the relevant principles are stated succinctly, and sufficiently for present purposes, in the judgment of Hunt CJ at CL in Reg. v. Hallocoglu (1991) 29 NSWLR 67 at 79G-80E. The relevant facts are that the sentence proceedings before Judge Tupman concluded on 28 January 1998; the Director of Public Prosecutions by letter dated 10 February 1998 informed the respondent of the possibility of an appeal upon the basis that the sentences were inadequate; on 23 March 1998 a Notice of Appeal was filed; and the notice was served not specifically advised to this Court but described at the hearing, and by counsel for the respondent, as having been "shortly after the appeal had in fact been lodged".

In my opinion, the application of the foregoing principles to the foregoing facts does not suggest that the present appeal should be dismissed by reason of unconscionable delay in its institution.

The relevant objective facts can be extracted as follows from the written submissions put in by the Crown in connection with the present appeal. It is conceded by the respondent that the Crown summary is accurate.

"At about 2.00 pm on Saturday 18 January 1997, the respondent was driving a dark blue Mercedes sedan registered number AEI-01A in a northerly direction along the Warringah Freeway at Naremburn. The freeway is a major artery linking the northern suburbs to the city of Sydney and south via the Sydney Harbour Bridge. At Naremburn it carried 6 lanes north bound and 6 lanes south bound. The southern boundary of the northbound lanes is curbed and guttered. Beyond the kerb is a grass verge about 5 metres wide bounded by a high rock wall. At about 2.00 pm, the traffic flow was heavy in both the north bound and south bound lanes but was moving steadily. An 80 kilometre per hour speed restriction applied.

The respondent's vehicle left the northbound roadway and mounted the kerb on the western side of the roadway. It then travelled about 30 metres across and along the nature strip before the passenger side of the vehicle side swiped the rock wall. The vehicle then continued for a further 30 metres along the nature strip before returning to the roadway. It travelled in an arc and crossed the six north bound lanes of the freeway. It then crossed the concrete median strip before continuing across two south bound lanes. Upon entering lane four south bound the passenger side of the respondent's vehicle collided with the front and driver's side of a Ford sedan registered number THV-599 travelling south.

The Ford sedan was being driven by James Murphy. His wife, Jane, was seated in the front passenger seat and his children, Robert, Claire and Anna aged 8, 8 and 6 respectively, were seated in the rear of the vehicle. After the impact both vehicles continued south for a short distance before coming to rest in lanes 2 and 3 south bound of the freeway. At the time of the accident, Mr. Murphy was wearing a seat belt. The impact caused him to strike his head on the interior of the vehicle and to briefly lose consciousness. He was also winded by the airbag which inflated upon impact. All passengers in Mr. Murphy's vehicle were able to alight from the vehicle. However Mr. Murphy remained trapped in his vehicle for about 10 minutes after the accident. During this time petrol leaked from the Mercedes and Mr. Murphy saw smoke and small flames in the Mercedes, and heard passers by warn others to clear the area, as they believed that the Mercedes vehicle was about to ignite. Mrs. Murphy and the children were then sitting at the side of the road.

Three passers by removed Mr. Murphy from his vehicle and laid him down on the median strip. Shortly afterwards, flames engulfed the Mercedes. The Fire Brigade quickly brought the fire under control.

At the time of the collision the weather was fine and visibility was good. The road was dry.

At the accident scene, the respondent was spoken to by at least three motorists who stopped to assist: Ms Alley, Ms Older and Mr. Tillett.

Ms Alley saw the respondent helped out of his vehicle. She then saw him wander towards the traffic. She moved him off the road and sat him down in the gutter. When she asked "Do you remember what happened?" the respondent said "I was just changing lanes.". The respondent had a cut on his head which was bleeding and a broken left arm. He kept moving his jaw around and was very agitated. He did not appear to comprehend what she was saying to him.

Ms Older saw the respondent get out of his vehicle. He spoke to her. She said: "He looked really strange. His mannerisms were really slow as was his speech. His head was lolling around and his eyes didn't look right, they looked very dopey."

Mr. Tillett also saw the respondent helped out of his vehicle. He approached him and asked if he was okay. The respondent was giggling and said, "Fuck look what's happened". Mr. Tillett observed that the respondent's pupils were very big, he was very agitated and when he was walking around "he was very bouncy".

The respondent was conveyed to the Royal North Shore Hospital by ambulance where he was treated for the laceration to his head and a fractured left arm. He informed medical staff at the hospital that he had used some cocaine prior to the collision. At 3.00 pm a blood sample was taken from the respondent. The sample was analysed and found to contain less than 0.05 mg of cocaine per litre of blood.

The respondent was interviewed by police at the hospital. He stated that he recalled travelling through the city and going over the Harbour Bridge. He stated that he could not recall the events leading up to the collision. He declined to be interviewed further upon legal advice.

Judith Perl, a pharmacologist employed in the Clinical Forensic Unit of the NSW Police Service for 13 years, expressed the opinion that at the time of driving the respondent would have most likely been under the influence of cocaine to the extent that his driving ability would have been impaired. Her opinion is based on the blood sample, the statement to medical staff at the hospital and details of the collision provided to her by police. Ms Perl indicated that cocaine is a central nervous system stimulant which impairs driving ability by altering perceptions and judgement and increasing aggressive or risk-taking behaviour during the acute phase of intoxication. Cocaine may also produce hallucinations. Following the stimulation phase, as the blood concentration of the stimulant decreases, there is a reactive drug induced fatigue stage when driving ability is also impaired. During this stage the driver will experience drowsiness, sleepiness and fatigue, a slowing of reactions and impairment of perceptions and judgement.

All five members of the Murphy family were conveyed to Royal North Shore Hospital by ambulance after the accident. Mr. Murphy (aged 37) was treated for the following injuries:

Mr. Murphy underwent an operation for his fractured fibula and tibia and spent 14 days in hospital. This was followed by a further operation on 17 April 1997 to remove screws from the upper tibia and an operation on 5 January 1998 to remove the internal pin from his leg.

He was in a plaster half slab for 1-1/2 months and used crutches for a lengthy period. He suffered on-going pain and tenderness to his front/left chest, on-going mid back pain and episodic abdominal pain due to seat-belt bruising. He also suffered loss of movement, in his ankle and toes, loss of sensation in his leg and foot and weakness in the right thumb. He underwent extensive physiotherapy (for at least 10 months after the accident) and was absent from work for more than 60 days. He also required psychological counselling.

Mrs. Jane Murphy initially had difficulty breathing and suffered severe bruising, chest and neck pain. She was treated for a fractured sternum and cervical injuries, and soft tissue injury to her neck and back.

Claire Murphy (aged 8) suffered a lacerated spleen, abdominal pain and tenderness and bruising. She spent 4 days in hospital.

Anna Murphy (aged 6) suffered bruising to her chest and abdomen and two fractures to her right leg. Her leg was put in a plaster cast, then an elasticised bandage (total period of 4 weeks). Anna spent 4 days in hospital. Robert Murphy received soft tissue seat-belt injuries."

The relevant subjective features of the respondent, as thus summarised by the Crown, and as conceded by the respondent to be accurately stated, are:

"The respondent was aged 27 years at the time of the accident. As a result of the fracture to his left arm sustained in the accident, the respondent required surgery in 1998 to remove the metal plate from his arm.

Since leaving school the respondent has been employed in the family curtain making business. At the time of the accident he held the position of production manager. The respondent married on 22 November 1997, and his first child is expected in 1998.

The respondent suffered some form of mild head injury as a result of a skateboard accident when aged about 14 years. The accident caused later amnesic episodes and loss of childhood memories. It probably caused some form of brain damage and resulted in later behavioural and personality changes. The respondent required further medical assessment as he had not at the date of sentence been either tested or assessed.

Prior to the offences, the respondent had four driving-related convictions, two in 1988 and two in 1989. For the first offence, driving in a manner dangerous, the respondent was fined $400 and disqualified from driving for 3 years (until March 1991). For the second offence, driving whilst licence was cancelled, the respondent was fined $300.

In 1989, the respondent was convicted of exceed speed limit, (fined $150) and for driving whilst disqualified; for the latter, he was sentenced to 100 hours community service, fined $500 and disqualified for a further 6 months, (until 15 September 1991).

Between 1985 and 1996 the respondent's record contains 12 entries for excessive speed, one for negligent driving and one for unlicensed driver. On three occasions the respondent's licence was cancelled for demerit points, and on two occasions he was issued with a probationary licence."

It is not necessary, for present purposes, to canvass the entirety of the extensive remarks made by her Honour on sentence. There are, however, two particular aspects of those remarks calling for present consideration.

The first of them concerns her Honour's findings of fact as to the causation of the collision in question. The second of them concerns the way in which her Honour approached the operation of the Home Detention Act. It will be necessary to return later herein to this latter aspect.

Her Honour discussed at length an assertion made by the respondent that he had, in real terms, no useful recall of relevant events leading up to the collision. Her Honour came to the conclusion, for reasons which she explains clearly in the remarks on sentence, that the respondent should be accepted in what he thus asserted. It was, in my opinion, clearly open to her Honour to take that view of the respondent and of his asserted lack of relevant memory.

Her Honour's own views on the question of causation have to be gleaned from a number of passages in the remarks on sentence. Her Honour's first relevant observations are:

"There is no evidence before me to assist me in determining how this accident occurred, except that, on a subsequent blood sample, it was discovered that there was present in the prisoner's blood 0.05 mg per litre of the drug cocaine.

There is also before me a pharmacologist's report that indicates that such a quantity of this drug would have adversely impacted on the prisoner's ability to drive, either as a result of increasing aggressive or risk-taking behaviour or alternatively, at a later stage of intoxication by the drug, inducing drowsiness, sleepiness, fatigue and impairment of perceptions, judgment and slowing of reaction time.

..............................................................................................................................................................................

I accept, by the stage that the prisoner crossed the median strip and drove on to the south bound lanes, that he had lost the ability to control the motor vehicle for some reason or other, which the evidence does not enable me to understand, except to the extent that it was contributed to by the cocaine in his blood."

Her Honour then discussed at length the respondent's assertion that he had no, or almost no, relevant recall; explained why she was disposed to accept the respondent in that regard; and continued:

"However, I also take into account the fact that there is evidence before me that at the scene of the accident, or shortly afterwards, to hospital or ambulance staff, the prisoner admitted to having used some cocaine prior to the accident and whilst there is little more detail before me than that, I accept that this admission, at least at the time, amounted to an admission that he had used cocaine at a relevant time, that is sufficiently close to the accident so that it would show up in his blood stream on a blood sample taken in the afternoon of 18 January 1997."

Her Honour went on to make some further brief remarks about the prisoner's lack of any useful recall; indicated that she drew no adverse conclusion as to remorse or contrition on the part of the respondent; and continued:

"I do accept, however, that he had used cocaine, either that day or sufficiently close to the time of the accident so that such a finding was able to be made on a blood sample and that in fact it adversely affected his ability to drive on that day."

I have thought it fair to the learned sentencing Judge to refer in some detail to the process of her Honour's reasoning on the question of causation. In my own opinion, however, it is unnecessary to travel in that regard beyond the combined effect of the provisions, of s.52A(3) of the Crimes Act 1900 (NSW); of the precise terms of the charges as preferred against the respondent; and of the respondent's plea of guilty to each such charge. The pleas, it is trite to observe, admitted every material ingredient of the offences charged. One such material ingredient was that of driving the relevant motor vehicle under the influence of a drug. Had the grievous bodily harm occasioned by the impact not been "in any way attributable" to the respondent's having driven the relevant motor vehicle while under the influence of a drug, then the respondent would have had a defence pursuant to s.52A(8). No attempt was made to raise any such defence; and that consideration reinforces the proposition that the grievous bodily harm charged in each of the three offences here relevant, was in fact attributable to the respondent's having driven his motor vehicle while under the influence of a drug.

Once that point is reached, then it follows, in my opinion, that the objective facts here relevant point to the commission of three connected offences, none of which could possibly be described as minor, and each one of which exposed the respondent to imprisonment for a maximum of 7 years. The correct construction, and the dutiful application, of s.52A(3), as variously constituted Benches of this Court have constantly and consistently re-affirmed, called, in my opinion, for the imposition of a full-time custodial sentence of some real substance.

It was, of course, the case that there were significant subjective matters that called for consideration. It will be necessary to say something more in that regard in the concluding section of the present judgment. It is necessary, however, first to deal with the questions of policy, of principle and of practice that arise in cases of the present kind and by reason of the Home Detention Act 1996 (NSW).

The Legislative Background of the Home Detention Act

In my opinion, ss 33, 34(1), 34(2)(f), and 34(3) of the Interpretation Act 1987 (NSW) make it permissible to have regard, for present purposes, to the sponsoring Ministerial speeches upon the second reading of the Bill for the Home Detention Act when the same received its second reading in the Legislative Assembly and in the Legislative Council.

The Bill received its second reading in the Legislative Assembly on 20 June 1996. The sponsoring Minister was the Minister for Corrective Services. The Minister outlined at the commencement of his speech, and as follows, the underlying policy of the legislation:

"A key commitment in Labor's Corrections policy for the 1995 election was the diversion, wherever possible, of minor offenders from gaol. Labor recognised that imprisonment is an expensive and highly punitive sentencing option. There is clear consensus in the community that full-time imprisonment should be reserved for those who represent a threat to public safety or who have committed crimes meriting the harshest of sanctions. The majority of offenders are not in this category and are far better dealt with through various community-based options. The Home Detention Bill is designed to establish home detention as one such sentencing option which is an alternative to full-time imprisonment."

"Home detention has been proven overseas and in Australian trials to be a humane and relatively low-cost custodial option. Particular categories of vulnerable offender can be given a last chance to avoid the rigours of full-time imprisonment without compromising community safety or the deterrent aims of the sentence. Home detention is not a soft option. It places severe constraints on the liberty of offenders by subjecting them to intensive supervision and electronic surveillance. It means offenders who pose little threat of violence can be held in the community at a cost well below that of imprisonment."

The Minister then proceeded to summarise the principal provisions of the Bill. Speaking of the regime of monitoring which is fundamental to the operation of the scheme envisaged by the legislation, the Minister said this:

"The offender will be able to leave the home for purposes approved by the supervisor.

Circumstances which would be approved for absence from home would include continuation of employment, seeking employment, attendance at a rehabilitation course, visits to a doctor and undertaking community work. The times for such absences from the home would be specified by the supervisor. As with inmate classification, home detention provides opportunities to achieve staged reduction in the stringency of security measures and commensurate increases in privileges as an incentive for a positive response to the program."

The Bill had its second reading in the Legislative Council on 15 October 1996, the sponsoring Minister being the Attorney-General. As I read the relevant Hansard, the Attorney-General tabled a written speech to be incorporated, by leave of the House, in Hansard. The incorporated speech of the Attorney-General is not quite identical with the speech of the Minister for Corrective Services; but it is almost identical. There are two particular differences which might be of present significance: first, the Attorney-General's speech does not refer in terms to a policy, to be expressed in the form of legislative provision for home detention, of diverting "minor offenders" from gaol; and, secondly, the Attorney-General's speech includes this proposition:

"As a home detention order will be imposed by a court, there will be no erosion of the principle of 'truth-in-sentencing'."

The concept of "truth-in-sentencing" is, of course, now well established in the law of this State. It has its origin, at least in terms of specific legislative expression, in s.3 of the Sentencing Act 1989 (NSW). It is there provided as follows:

"3. The objects of this Act are: (a) to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum or fixed term of imprisonment set by the court; and (b) to provide that prisoners who have served their minimum terms of imprisonment may be considered for release on parole for the residue of their sentences."

It is, perhaps, timely to observe that the concept of "truth-in-sentencing", correctly understood in the light of the foregoing statutory provisions, does not focus, as a matter of mere formality, upon the imposition of a sentence of imprisonment by a Court, - (which is to say, by a real and constitutionally independent Judge sitting in a real Court), - rather than by some other administrative body or official. The concept focuses, rather, upon the importantly different proposition that a sentence of imprisonment, lawfully imposed by such a Judge sitting in such a Court, is to take effect according to its tenor and without supervening administrative interference taking place without the knowledge, let alone the knowledge and approval, of the sentencing Judge.

What has just been said does not involve some trifling semantic quibble, or some exaggerated judicial or curial amour propre. What is involved can be seen by developments in the extra-curial administration of the scheme of periodic detention that was established by the Periodic Detention of Prisoners Act 1981 (NSW). That statutory scheme, as progressively corrupted administratively, was examined in close detail by this Court in the decision earlier herein cited, of Hallocoglu. Hunt CJ at CL, (Grove and Sharpe JJ agreeing), had this to say:

"The Crown's submission that the punitive effect of periodic detention has now been substantially reduced is clearly correct - to a startling degree. In what would appear to be the usual case, a prisoner ordered by a court to serve his sentence by way of periodic detention in fact serves only one-third of his sentence in periodic detention; the remainder of his sentence is no more punitive than a community service order.

To say that this change to the periodic detention scheme is surprising is to express my reaction in mild terms There appears to be no legislative warrant for the change but legality of the departmental policy is not in issue in this appeal. I am unaware of any warning communicated to the courts that the nature of periodic detention was to be, or has been, changed administratively to such an extraordinary extent. It is important that the changed consequences of an order that a sentence be served by way of periodic detention should now be brought to the attention of all criminal courts in this State." (29 NSWLR, 74G-75A)

I think it expedient to make all of the foregoing points because it seems to me to be clear that the new scheme of home detention is intended to entail, among other things, "opportunities to achieve staged reduction in the stringency of security measures and commensurate increases in privileges as an incentive for a positive response to the program", such opportunities requiring neither the prior knowledge nor the prior approval of the sentencing Court. In my opinion, this Court should do in respect of home detention orders, what Hunt CJ at CL felt constrained to in the cognate field of periodic detention orders, and place on record a clear warning to the sentencing Courts of this State, that any home detention order should be made in the clear understanding that it is entirely possible that supervening administrative action, taken without the knowledge or approval of the sentencing Court, might well entail, in a particular case, that the burden of the order, as contemplated by the sentencing Court, is significantly reduced.

The objects of the Act are stated specifically, and in s.4, as follows:

"(1) The objects of this Act are to provide for home detention as a means of serving a sentence of full-time imprisonment, and to that end:

(a) to define the class of sentences of imprisonment that may be served by way of home detention, and the class of offenders who are eligible to serve a sentence in that way, and

(b) to provide for due assessment of eligible offenders so as to determine their suitability, and the suitability of their circumstances, to serve a term of imprisonment by way of home detention, and

(c) to provide for the making and revocation of home detention orders and for the imposition of conditions applicable to home detention:

(i) specifying periods of confinement and the circumstances in which the offender may be absent from home, and

(ii) regulating the conduct of the offender while subject to home detention and providing for the monitoring of that conduct, and

(iii) generally defining the constraints and privileges pertaining to home detention.

(2) It is not the object of this Act to divert to home detention offenders who might be appropriately dealt with by way of periodic detention or by a non-custodial form of sentence."

Section 5 of the Act defines the sentence that may be the subject of a home detention order. The basic provision in that regard is made by ss (1) of s(5), which sub-section is in the following terms:

"(1) A home detention order may be made in respect of a sentence of imprisonment comprising:

(a) a fixed term of imprisonment not exceeding 18 months, or

(b) a minimum and an additional term that do not in the aggregate exceed 18 months."

Sub-sections (2) and (3) make certain ancillary provisions, the fine detail of which is not now relevant.

Sections 6, 7 and 8 provide for certain criteria, the existence of any one or more of which precludes the availability of a home detention order. The only portions of those sections that need to be reproduced for present purposes are ss (4) and (5) of s 8, which sub-sections provide as follows:

"(4) A home detention order must not be made unless the offender has been assessed under section 10 and the relevant assessment report recommends that the sentence might be appropriately served by way of home detention.

(5) A court may, for reasons appearing to it to be sufficient, decline to make a home detention order despite the contents of the assessment report."

Sections 9 and 10 of the Act deal with the assessment of applicants for home detention orders. For present purposes, it is necessary to refer only to ss (2) and (3) of s 9, which sub-sections provide as follows:

"(2) When a court refers an offender for assessment under this section, the referral stays the execution of the sentence until it is decided whether a home detention order is to be made, and the court may defer compliance with section 8 of the Sentencing Act 1989 until such a decision is made.

(3) When execution of a sentence is stayed under this section:

(a) the sentence does not commence to run until the stay expires as provided by section 11, and

(b) for the term of the stay the offender may be remanded in custody or granted bail in accordance with the provisions of the Bail Act 1978."

Section 11 of the Act completes the group of provisions dealing with the formalities necessary to the making of a lawful home detention order. Section 11 is of present significance, and it is desirable to quote it in full:

"(1) A court that has sentenced an offender may by order direct that the minimum term of the sentence concerned (or, in the case of a fixed term sentence, the whole of the fixed term) be served by way of home detention.

(2) A reference in subsection (1) to a court that has sentenced an offender:

(a) includes a reference to that court even if constituted by another person or other persons, and

(b) in the case of a sentence passed by a Local Court, includes a reference to any Local Court.

(a) if the making of the order in the case concerned is prohibited by a provision of this Part, or

(b) if the court is not satisfied, having regard to the contents of the relevant assessment report, that the order is appropriate in the circumstances of the case.

(4) At such time as the court makes or declines to make a home detention order, a stay of execution of sentence under section 9 expires, and in cases where the order is not made, the sentence of imprisonment is to be carried out.

(5) Section 8 of the Sentencing Act 1989 applies to the carrying out of a sentence as referred to in subsection (4), and the court may, in fixing a commencement date for the relevant term of imprisonment, take into account time spent by the offender on remand pending assessment under section 10."

Part 3 of the Act, comprising sections 12 to 20 both inclusive, deals with the operation of home detention orders. It is relevant for present purposes to note the following provisions of s 13, which deals with the setting of conditions applying to any particular home detention order:

"(1) The following conditions apply to home detention:

(a) conditions prescribed by the regulations as standard conditions of any such order,

(i) specified by the court on the making of the relevant home detention order, or

(2) Conditions applying to home detention may include conditions relating to the offender's employment while the home detention order is in force and may require the offender to perform community service work while not otherwise employed.

(3) Additional conditions may be revoked or varied, and new conditions may be added by the Board by notice in writing served on the offender concerned.

(4) Subsection (3) does not permit revocation of any standard conditions or conditions imposed by the court, or allow the conditions to be varied so as to be inconsistent with standard conditions or conditions imposed by the court."

The Board to which reference is made in the foregoing quotation is the Parole Board established under the Sentencing Act 1989 (NSW). Specific provision is made in Part 3 for the revocation of any home detention order for breach of any of the conditions attaching to the order. It is to be noted that an application for any such revocation of a home detention order is to be made by the offender's supervising officer and is to be made to the Parole Board. Such a supervising officer will be, always and by reason of the specific terms of section 3 of the Act, "a person employed in the Probation and Parole Service who is designated a supervising officer for the purposes of this Act".

It is not, I think, necessary to canvass the detail of the remaining sections of the Act, namely sections 21 to 28, both inclusive; except to note that section 28 requires a Ministerial review of the Act, and of its operation, "as soon as possible after the period of 18 months from the commencement of section 11". The relevant Minister is required, in addition, to report at least once in each calendar year after the tabling in Parliament of the report deriving from the initial review, "(a) report to both Houses of Parliament on the impact of this Act on families".

Regulations have been made pursuant to the power conferred in that behalf by the Act. Reg. 9 states, as follows, the standard conditions of a home detention order:

"9. For the purposes of section 13(1)(a) of the Act, the following are standard conditions of home detention:

(a) the offender must be of good behaviour and must not commit any new offence,

(b) the offender must advise a supervising officer as soon as possible if arrested or detained by a police officer,

(d) the offender must remain at the approved residence at all times other than when engaged in specified activities approved of or arranged by a supervising officer or when faced with immediate danger (such as in a fire or medical emergency),

(e) the offender must adhere to the specified activity plan during approved absences from the approved residence,

(f) the offender must advise a supervising officer as soon as practicable after departure from the approved residence due to immediate danger,

(g) the offender must accept any visit to the approved residence by a supervising officer at any time,

(h) the offender must submit to searches of places or things under the immediate control of the offender, as required by a supervising officer,

(i) the offender must submit to electronic monitoring (including voice recording) of compliance with the home detention order and comply with all instructions given by a supervising officer in relation to the operation of monitoring systems,

(j) the offender must not tamper with, damage or disable monitoring equipment,

(k) the offender must comply with any direction of the supervising officer in relation to association with specified persons,

(m) the offender must not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained,

(n) the offender must submit, as required by a supervising officer, to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use,

(o) the offender must authorise any medical practitioner, therapist or counsellor to provide information to a supervising officer,

(p) the offender must accept any direction of a supervising officer in relation to the maintenance of or obtaining of employment,

(q) the offender must inform any employer of the home detention order and, if so directed by a supervising officer, of the nature of the offence that occasioned it,

(r) the offender must authorise contact between any employer of the offender and a supervising officer,

(s) the offender must engage in personal development activities or in counselling or treatment programs, as directed by a supervising officer,

(t) the offender must undertake community service work when not otherwise employed (not exceeding 20 hours per week), as directed by a supervising officer,

(u) the offender must not possess or have in his or her control any firearm or other offensive weapon,

(v) the offender must comply with all reasonable directions of a supervising officer."

1. Is a sentence of imprisonment with a superadded home detention order properly to be regarded in any assessment of the adequacy of the sentence as being as onerous as, or as being less onerous than, the same sentence of imprisonment that is actually served in prison?

2. How should primary sentencing Judges approach the implementation of the Act?

As to question 1. This question as been considered by three differently constituted Benches of this Court: Reg v Brendan Kelly Smith (1997) 95 A Crim R 373; Reg v Dominic Michael Lambrinos (unreported: Court of Criminal Appeal: 17 July 1998; and Reg v Kerry Anne Byrne (unreported: Court of Criminal Appeal: 5 August 1998. Distinctly different opinions are expressed in various of the judgments in those three cases. It was the existence of such differences of opinion that caused the convening of the present Bench of five Judges.

In Smith, the Court was asked to entertain a Crown submission which is summarised as follows in the judgment of Grove J:

"The essence of the Crown submission was that the order for home detention introduced a significant degree of leniency into any sentence imposed and that accordingly that leniency should be taken into account in assessing the adequacy of such sentence. By way of analogy observations by this court that periodic detention has such an element built into it was the subject of reference: Hallocoglu (1992) 29 NSWLR 67; 63 A Crim R 287 and the cases referred to therein.

The Crown contended that, although the Home Detention Act was recent legislation and there was no authority directly in point, it was a matter of common sense and logic that in parallel with the reasoning exemplified in Hallocoglu, home detention should be assessed as more lenient than full-time incarceration." (95 A Crim R, 376)

Grove J surveyed section 4 of the Home Detention Act and the Home Detention Regulations made pursuant to it. His Honour made in that context the following observations which are of present relevance:

"It is noted that the Periodic Detention of Prisoners Act 1981 (NSW) contains no declaration of objectives in terms similar to the Home Detention Act, being limited to its preamble that it is to make provision for and with respect to periodic detention of certain persons sentenced to imprisonment. Home detention hence is a method by which an already imposed sentence of imprisonment may be served. .................... The structure of the Act makes it a matter for decision after the sentence is imposed whether it will be permitted to be served by way of home detention. ..........................

It can be observed that pursuant to the home detention regulation, Reg. 9, there are prescribed standard conditions applying to home detention which are restricting upon freedom of movement of the prisoner under sentence upon terms which are comparatively as rigorous as those as would be applied to a prisoner in a minimum security institution who was permitted work or study release privileges." (95 A Crim R, 377)

"My conclusion therefore is that an order for home detention is a collateral order to a sentence of imprisonment and accordingly is not a matter to be taken into account by this court in assessing the adequacy of a term of imprisonment imposed in the court from which appeal is brought. That conclusion is, I consider, compatible with the ordinary separation of responsibility (subject to Administrative Law jurisdiction) that it is for the executive to determine how, where and under what conditions a sentence of imprisonment imposed by a court is to be served. The Home Detention Act transfers one of the decisions on the aspect of where sentence is to be served to the judicial arm." (95 A Crim R, 377)

Studdert J expressly concurred in the foregoing analysis of the Home Detention Act.

Smart J expressed a contrary view. His Honour said:

"The fact that a sentence may be served in different ways or by different means does not result in the sentence being necessarily of the same severity. The means of service are important. I would take them into account in assessing the severity or adequacy of a sentence. ..............................................................................................................................................................................

If the judge thinks that home detention could, or would, be appropriate he may refer the offender for an assessment. If he thinks that home detention is inappropriate he would not refer the offender for an assessment. It does not mitigate against my view that the length of the sentence is determined first and then a decision is made as to whether there should be a reference for an assessment as to home detention." (95 A Crim R, 378, 379)

In Lambrinos, I made the following observations concerning the Home Detention Act:

"....[The Sentencing Judge] ..... built into his final remarks on sentence some comments about the Home Detention Act. It is not necessary, I think, to say a great deal in regard to that; but it might be useful to make the following observations in relation to that topic.

There is, as matters stand, a division of opinion in the Court, - I do not mean in this Bench, but in the Court more generally understood, - respecting the extent to which the assessment of the adequacy or otherwise of a sentence may be carried out, taking account of the fact that an order for service of the sentence, or part thereof, in home detention has been made. The first thing that might usefully be said is that on Monday of this week, in the matter of Jurisic, a Bench of the Court presided over by his Honour the Chief Justice reserved that point for consideration by a Court of five Judges convened for that purpose; and which, it is proposed, will look at that question in mid-August.

Any reference, therefore, in the cases between now and the decision of such specially constituted Court, of matters arising out of the Home Detention Act, should be made in the understanding that it is proposed that such a specially constituted Court will take up the differences of opinion which have emerged with regard to the operation of the Act; and will seek to clarify the correct state of the law in that regard.

The second thing that might usefully be said about the Home Detention Act is that, if one looks at the Second Reading Speech of the Minister for Corrective Services when introducing the enabling Bill into the Legislative Assembly, certain things are immediately apparent. One, relevant for present purposes, is that a primary legislative purpose is to take out of the Corrective Services mainstream what the Minister described to Parliament as "minor offenders". I wish to say that, for my own part, I would not have thought it reasonably possible to fit the present case, on any view of its facts, into a category properly described as a category of "minor offenders".

Since I have thought it proper to say anything about the Home Detention Act, I would wish to take the opportunity to say that, for myself, I would agree entirely with the view expressed by his Honour the presiding Judge in the matter of Smith. His Honour Mr. Justice Dunford has also expressed views to that effect, in somewhat different terms, but in terms with which , also, I agree."

The other members of the Court, Smart and Ireland JJ, did not comment about the matters of which I thus spoke.

In Byrne, the principal judgment of the Court was given by Dunford J. Speaking of the decision in Smith, Dunford J said:

"With all respect to the majority, I find myself unable to accept their assessment of home detention. I do not consider that the distinction between periodic detention, where an assessment is done before imposing sentence, and home detention, where the assessment is done afterwards, is significant and I do not regard the analogy drawn between the prescribed standard conditions for home detention in Reg. 9 and the conditions of a prisoner in a minimum security institution permitted work or study release privileges to be apposite. Not only are such prisoners deprived of home comforts and spousal and family company, but they only reach the stage of minimum security with work or study release privileges after a period of less congenial conditions.

In R. v. Pine: (unreported - CCA - 4 March 1998) I said,

"For myself, I cannot see how home detention with, inter alia, comfortable accommodation, furniture and fittings, home cooking, the company of spouse and/or family members and a generally unregulated timetable, could be regarded as not more lenient than full-time incarceration in an institution under the administration of the Department of Corrective Services."

In my respectful opinion, the view of Grove and Studdert JJ should not be followed and, even taking into account the respondent's description of home detention quoted above, I would regard a sentence to be served by way of home detention as less onerous than one of full-time custody and, like Smart J in R v Brendan Smith, I would take the means of serving the sentence into account in assessing the adequacy of the sentence."

The other two members of the Court, once again Smart and Ireland JJ, delivered simple concurring judgments, making no extended comments about the Home Detention Act.

With all proper deference to those of my brethren who have expressed a contrary view, I can but say for myself that I agree entirely with what is said by Dunford J in Byrne. I accept that the standard conditions of a home detention order are burdensome; but it seems to me that they are burdensome in the sense of being, by and large, inconvenient in their disruption of what would be the normal pattern and rhythm of the offender's life in his normal domestic and vocational environment. Any suggestion that such inconvenient limitations upon unfettered liberty equate in any way at all to being locked up full-time in the sort of prison cell and within the sort of gaol that are normal in New South Wales could not be accepted, in my respectful view, by anybody who has had the opportunity of going behind the walls of any one of those prison establishments; and of seeing, even from the limited point of view of a casual visitor, what is really entailed by a full-time custodial sentence.

I can imagine that from time to time a Court might have to deal with an offender whose destitution is so complete as to make even such full-time incarceration an improvement in material well-being. Such an exceptional case can always be accommodated by what I believe to be the correct general principles.

In my respectful view, the majority opinion in Smith is wrong and should not hereafter be followed.

As to Question 2, any attempt to answer a question such as this one must proceed, in my opinion, from an acknowledgment that, as this Court has pointed out on many occasions, sentencing is an art and not a science; and it is neither practical nor desirable to impose procedural straight-jackets upon primary sentencing Judges.

That said, it is, in my opinion, important to establish clearly the proposition that a primary sentencing Judge should ignore absolutely the existence of the Home Detention Act, and should not entertain any application respecting the Act, until after that Judge has determined, according to proper principles correctly applied to the given facts of the particular case, what sentence of imprisonment should be imposed upon the particular offender.

If that process yields a term exceeding the statutory maximum prescribed by section 5 of the Home Detention Act, then, and obviously, no further question as to the application of the Home Detention Act will arise.

If, on the other hand, that initial process results in the imposition of a sentence which is within the statutory maximum as thus defined in the Home Detention Act, then the Judge must exercise, in a properly judicial way, the discretion conferred by section 9(1) of that Act. This is a matter for experienced and professional judgment on the part of the Judge; and, as I said earlier, it is neither practical nor desirable to attempt a statement of rigid and all-encompassing rules by reference to which that type of judgment should be exercised in any particular case. That said, it is, however, my view that the following principles are both practical and desirable guidelines in the exercise of this particular judicial discretion:

1. The Judge in question should bear in mind that there is nothing dutiful, and there is certainly nothing humane, in holding out to any offender what amounts to a false promise. This Court is called upon on far too many occasions to uphold a Crown appeal against sentence; and thereupon to commit to prison an offender who has been given some form of bond, or the benefit of some form of community service order, or the benefit of periodic detention, in a context where no dutiful performance of the primary sentencing function could reasonably have justified such leniency.

2. It follows, therefore, that before exercising the relevant statutory discretion in favour of making the reference for assessment, the Judge should take carefully into account the considerations:

(a) that, in the real world, it will be assumed, whatever the Judge might say to the contrary, that a favourable assessment will entail the making, in fact, of a home detention order;

(b) that the making of such an order will entail, conformably with the principles earlier herein discussed, a significant watering down of the sentence of imprisonment; and, therefore, a significant diminution in the effectiveness of the sentence in terms of proper retribution; of proper personal deterrence; and of proper general deterrence.

(c) that the consequence of making a home detention order might result in the converting of a sentence that is effectively unappellable because it is within the range of a proper sentencing discretion, into a sentence which is properly appellable because it has been turned, effectively, into a sentence that is no longer within such a range.

If the sentencing Judge decides to exercise the section 9(1) discretion in favour of seeking an assessment of suitability for home detention, then the Judge will receive in due course an assessment that either recommends the particular offender as suitable for home detention, or recommends that the offender is not so suitable. If the assessment recommends unsuitability for home detention, then a home detention order cannot be made: see section 8(4) of the Home Detention Act. If, on the other hand, the assessment recommends suitability for home detention, then the Judge must exercise a further and discrete discretion as to whether a home detention order will, in fact, be made in the particular case: see section 8(5) and section 11(3) of that Act. What has been said previously regarding the exercise of the section 9(1) discretion applies mutatis mutandis to the exercise of this further discretion.

There is, in my opinion, one further general proposition that should guide primary sentencing Judges in the context of the application of the Home Detention Act.

It is, in my opinion, a misconception producing appellable error or law for a primary sentencing Judge to treat a home detention order as any sort of an alternative to a periodic detention order. No doubt, primary sentencing Judges will approach in different particular ways the practice in any particular case of the art of sentencing. That sentencing process must entail, however, at whatever particular point in the process, and by whatever particular path the point is reached, at least the following steps:

1. A decision whether the particular case, judged according to proper sentencing principles, permits at all of the grant of any kind of bond, recognisance, community service order, or other order not entailing the imposition of a sentence of imprisonment.

2. If the answer to that first question be in the negative, whether the sentence of imprisonment which is required according to proper sentencing principles, might properly be ordered, by reference to those same principles, to be served in full-time custody, or by way of periodic detention. As earlier explained, the taking of this particular decision will entail a proper bringing to account of the considerations discussed by Hunt CJ at CL in Hallocoglu.

3. If, and only if, the foregoing steps result in a conclusion that a sentence of full-time imprisonment is appropriate; and if, and only if, such a sentence is quantified according to proper principles correctly applied, and is actually imposed, will any question of the applicability of the Home Detention Act arise.

It is, in my opinion, not permissible for a primary sentencing Judge to consider at all the suitability of an offender for home detention, unless and until the foregoing steps have all been taken. If the possible application of the Home Detention Act is then raised with the sentencing Judge, then, and only then, will there arise a need to consider the exercise of the various statutory discretions that I have earlier discussed. Human nature being what it is, an approach along the lines which I have been discussing in this section of the present judgment, cannot be expected to eradicate completely the temptation for a primary sentencing Judge, who is philosophically disposed to favour a generous use of home detention orders, but who feels constrained by statute or by curial authority to impose a sentence of full time imprisonment, to tailor the sentence so as to bring it within section 5 of the Home Detention Act. All that can be said is that the suggested principles and approach will at least identify that temptation; and give warning, both fairly and distinctly, that a yielding to such a temptation will simply result in appellate intervention by this Court.

In the present case, the learned sentencing Judge made very favourable findings as to the subjective features of the respondent's particular case. I do not see that any of the conclusions thus reached by her Honour were not fairly open on the evidence.

As to the relevant objective facts, it is clear from what her Honour said that she correctly appreciated the gravity, in general terms, of an offence contravening section 52A of the Crimes Act; and that she correctly appreciated the gravity, in a sense more particular to the respondent, of the respondent's offending behaviour.

The process of reasoning by which her Honour then brought together her findings as to the objective and subjective matters relevant to the respondent's case, commences with an acknowledgment by her Honour: "........ that the starting point for offences of this type is that the court would look at the imposition of a term of full time imprisonment". Her Honour refers very briefly to some reported decisions of this Court to which her attention had been drawn, and says that she accepts that those authorities stand for "......... the proposition that this court should take such offences as this seriously indeed and should impose a custodial penalty in almost all cases".

In my respectful opinion, these perceptions of her Honour were correct, and were in accord both with manifest statutory policy, and with a body of decisions of this Court by which her Honour was bound.

The next step in her Honour's process of reasoning commences with the following observations:

"It has been put on behalf of the prisoner that I might consider the imposition of periodic detention as an appropriate sentence in this case or, as an alternative, having made the decision that the matters are worthy of full-time imprisonment, I would request an assessment for home detention so that any period of imprisonment would be served pursuant to the provisions of that Act. I have come to the conclusion that periodic detention in this case would not adequately reflect the objective seriousness and criminality of the offences. It seems to me that with a combination of the three counts, albeit arising from the one episode, and the prior poor traffic record of the prisoner, that it could not be said that this is an appropriate case for periodic detention.

However, I have come to the conclusion that the period of imprisonment which I intend to impose can, if the prisoner is assessed as appropriate, properly be served by way of home detention in this case."

Her Honour then makes brief reference to the decision, earlier herein discussed, in Smith. Her Honour then continues:

"It seems to me in this case, in circumstances where the prisoner has substantially altered his life, improved his attitude generally, needs to undertake assessment and treatment for possible brain damage suffered many years ago, is able to engage in full time employment and has a stable family, both family of origin to support him and new family in terms of his wife, that this is the very sort of case where the community could be satisfied that a period of imprisonment could well be served pursuant to the provisions of the Home Detention Act, without in any way derogating from the seriousness of the offences and the general deterrence aspect that the Court is required to take into account in assessing and setting an appropriate penalty."

In my respectful opinion, this stage of her Honour's process of reasoning discloses an error of principle. Her Honour seems to me to have come to a settled view about the appropriateness of dealing with the respondent by means of a home detention order, before having clearly articulated and imposed a sentence of imprisonment. For reasons earlier herein explained, I am of the opinion that such an approach erroneously inverts the process of reasoning required by the correct construction, and the proper application, of the Home Detention Act.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (223 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (13)

R v Jurisic Matter No 60131/98 [1998] NSWSC 423 (12 October 1998)