"98 Proceedings for breach of good behaviour bond
(1) If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond:
(a) the court with which the offender has entered into the bond, or
(b) any other court of like jurisdiction,
may call on the offender to appear before it and, if the offender does not appear, may issue a warrant for the offender's arrest.
(2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court:
(a) may decide to take no action with respect to the failure to comply, or
(b) may vary the conditions of the bond or impose further conditions on the bond, or
(c) may revoke the bond.
(3) In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied:
(a) that the offender's failure to comply with the conditions of the bond was trivial in nature, or
(b) that there are good reasons for excusing the offender's failure to comply with the conditions of the bond."
50 Given the broad nature of the discretion under s95(c), can it be said that condition (4) is beyond power or inappropriate? What limitations, if any, are there upon the exercise of that power? In Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490, the Court was dealing with a broad discretion conferred upon a Local Council to grant development approval unconditionally, or subject to "such conditions as it may think proper to impose", or to refuse an application (clause 40(1) of the North Sydney Planning Scheme Ordinance). Walsh J (with whom other members of the Court agreed) said this: (at 499)
"In accordance with a well-recognized rule, s40(1) ought to be understood (quite apart from the limitation contained in its opening words) not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made."
51 In Macpherson v Beath (1975) 12 SASR 174, a Special Magistrate imposed a two year bond with certain conditions. There was an appeal by the person who was subject to those conditions. He was a university student. He had been convicted of having assaulted a lecturer at the university. It required the defendant "to be of good behaviour and to obey the reasonable directions of, and be at all times courteous to, members of the administrative and teaching staff of any educational institution which he may be attending".
52 Bray CJ, having referred to the Act which gave the power to impose a bond, said this: (at 180)
"The present condition is obviously not authorised by sub-sections (a) or (b). It can be justified, if at all, only under the words in sub-s (c) about 'such additional conditions with respect to ... any other matters, as the court may, having regard to the circumstances of the case, consider necessary or desirable for preventing a repetition of the same offence or the commission of other offences.'
I think this condition is bad for several reasons. In the first place I think it is too uncertain to be enforced and hence oppressive. The appellant must be able to know just what conduct during the next two years will subject him to automatic incarceration. What directions are 'reasonable'? What does 'courteous' mean in this context? Standards of courtesy vary. Must he get to his feet every time a lecturer enters the room and address him or her as 'Sir' or 'Madam', as the case may be?"
53 The Chief Justice believed that the condition could not reasonably be regarded as "necessary or desirable for preventing a repetition of the assault" (at 181). Rather, it "was designed to bend the defendant's unruly will and force him to conform to conventional standards of politeness under threat of gaol" (at 181). The power given could not be used for that purpose. The Chief Justice added: (at 181)
"I have more than once deprecated the tendency to insert unusual conditions into recognizances designed to control the defendant's private life in contexts only indirectly related, if at all, to the crime for which he is being punished. I have allowed appeals against such conditions: see Neil v Steel (1973) 5 SASR 67; Baddock v Steel (1973) 5 SASR 71. To my mind they tend to savour of excessive paternalism and in extreme cases of tyranny. I realise that views differ on this matter, but mine are strongly held."
54 Zelling and Jacobs JJ agreed. Jacobs J added: (at 183)
"With all respect to the learned Special Magistrate, and without in any way criticising the purpose which he had in mind, I am constrained to think that a condition 'to obey the reasonable direction, and be at all times courteous, to members of the administrative and teaching staff' of a specified educational institution, is at worst too vague and too uncertain to be enforceable, and at best, too wide. Conduct which may constitute a breach of the bond should be capable of reasonably clear definition."
55 In Williams v Marsh (1985) 38 SASR 313, Cox J had occasion to consider a similar issue. The appellant had been convicted of behaving in a disorderly manner at Colley Reserve at Glenelg. A Special Magistrate imposed a bond that he be of good behaviour for twelve months and that during that period "he not attend the Glenelg foreshore area". The appellant entered the bond in those terms. However, he later sought relief from the condition relating to the foreshore area, which was said to be "unduly harsh" and "inappropriate".
56 The Crown, in the words of Cox J, raised "no great opposition" to the appeal being allowed, submitting that the condition was superfluous. It really did not add anything to the requirement that the appellant be of good behaviour. However, Cox J said this: (at 315)
"... the responsibility for deciding on the right penalty in any particular case is, in the end, that of the court. The learned Special Magistrate who dealt with the appellant's case evidently considered that more was needed than the usual conditions about keeping the peace and being of good behaviour. He thought that it was desirable to keep the appellant out of the area where the offence took place for the period of the bond, and that s70ab enabled him to impose a condition to that effect. So far as the principle of the matter is concerned, I see no reason to disagree with him."
57 His Honour observed that the power to impose conditions was unqualified by the terms of the legislation. The Court, in his view, should be wary of reading limitations into the legislation that Parliament had not chosen to prescribe for itself. Cox J added: (at 316)
"Obviously any additional conditions that a court might decide to include in any particular case should be appropriate to the circumstances of the offence and the offender in question and, as with all forms of punishment, be no more than the circumstances reasonably require. It will never be proper to impose conditions that will operate harshly or unreasonably, or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. It would not be a proper use of s70ab for the court merely to take the opportunity offered by a man's conviction to attempt a general reform of his character that might be thought desirable. It is a power to be used with circumspection."
58 His Honour was not persuaded that the condition in the bond was oppressive or improper in the circumstances (at 316). He was concerned, however, that the condition was too imprecise (at 319). The "foreshore" was not defined. His Honour therefore revised the condition. The appellant should not, during the currency of the bond, "enter upon Moseley Square or Colley Reserve at Glenelg" (at 320).
59 In R v Harvey (1989) 40 A Crim R 102, Ms Harvey pleaded guilty to a charge of cultivating a prohibited plant, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The sentencing Judge imposed a bond to be of good behaviour for a period of five years. It was a condition of the bond that Ms Harvey report to the police each day, Monday to Friday, between the hours of 8.00 am and 8.00 pm, and that she accept the supervision of the Probation and Parole Service. Application was made to the Court of Criminal Appeal to quash the order requiring Ms Harvey to report daily to the police. Lee J (Wood and Grove JJ agreeing), having stated that neither counsel was aware of a similar order having been made in the context of a bond, added: (at 103/104)
"... One finds it very commonly, of course, when bail is allowed and its purpose there is plainly twofold, essentially to ensure the attendance of the accused at trial but also to act as a deterrent against further criminal activity during that period. Such an order in my view always has that secondary operation upon the prisoner.
In my view his Honour had the power to make such an order and in this particular case, involving as it did a planned enterprise in regard to cultivation of a prohibited drug, I am not prepared to say that his Honour was in error in turning his mind to the possible deterrent effect of the making of such an order. I am, however, strongly of the opinion that his Honour did err in requiring the order to operate during the entire period of the recognisance. It was, in my opinion, in that respect needlessly onerous. The applicant was required to report to the Probation and Parole Service and would get the supervision offered by that Service and I cannot see that reporting to the police for the whole period stated served any purpose at all. As the applicant has in fact carried out the order for a period now since it was made last October, it seems to me that it would be appropriate for this Court to quash the order so that no further reporting to the police is required. Of course, the other conditions of the recognisance would still stand."
60 Grove J, whilst agreeing that the time had come to remove the requirement of reporting (four months having elapsed since the condition was imposed), said this: (at 104)
"I do not think it is an appealable error to make such an order at all and I imagine, although I cannot immediately contemplate, that there may be some circumstances in which an order of this type could be apposite."
61 What, then, are the principles to emerge from these authorities?
· First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is, the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation.
· Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed.
· Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous.
62 Did condition (4) offend these principles? The Probation and Parole report suggested that Mr Bugmy's offending behaviour, and indeed his criminal history of violence, was related to his abuse of alcohol. That, in turn, was linked to his associations in Wilcannia with certain family members and friends. Mr Bugmy, when interviewed by the Service, appeared to acknowledge that link and the need to remove himself from Wilcannia.
63 Finnane DCJ, in framing condition (4), was plainly addressing these issues. He no doubt hoped that Mr Bugmy's absence from Wilcannia would break the habit of alcohol abuse. It may therefore interrupt the cycle of abuse followed by criminal behaviour. Addressing what I have termed "the first principle" (supra para 59), condition (4) is plainly related to the crime being punished and the purposes of punishment, specifically rehabilitation.
64 However, was the condition sufficiently certain? The condition embodied a principle and made an exception. The principle was that during the term of the bond Mr Bugmy was not to enter Wilcannia. The exception was that he may enter if he first obtained the permission of the sentencing Judge. The principle, I believe, was certain. The conduct which would put Mr Bugmy in breach was clearly identified. However, the exception was quite uncertain. Although, in the remarks on sentence, there was discussion of the importance of funerals in Aboriginal culture, and the need for Mr Bugmy to attend such funerals, the condition, as framed, was not so limited. Without amendment it cannot, in my view, be allowed to stand.
65 However, with respect, the exception is unsatisfactory for other reasons. I would not read s95(a) of the Crimes (Sentencing Procedure) Act 1999 as authorising the sort of supervision contemplated by his Honour's order. Rather, that provision relates to s98(1), where it is suspected that the offender may have failed to comply with the conditions of the bond. There is no other provision which expressly empowers a judge to make an order with the sort of exception in condition (4). Nor would I imply such a power from other provisions in the Act. Essentially, the exception to condition (4) was administrative in character, not judicial. There is no defined procedure for making an application, no right for the Crown to be present, and no obvious right of appeal. Where permission is given by the Judge, does he have the power to impose conditions, as was done in this case? If so, what is the status of those conditions? Are they "conditions" for the purposes of the procedure in s98(1), where a breach is suspected? If not, what is the remedy if there is a breach?
66 In R v Sanerive (CCA (Vic), unreported, 23.6.95), the sentencing Judge made what was termed "a community based order", which is a form of non-custodial sentence. The order was subject to a number of conditions. Amongst other things, the offender was required to perform eight hours of unpaid community work each week for a period of five years. The order contemplated an annual report to the sentencing Judge from those responsible for community service "as to the progress of the prisoner". The offender was required to attend before the sentencing Judge on 12 February each year for the duration of the bond, when these issues would be reviewed. Ormiston J (with whom Southwell and McDonald JJ agreed) said this:
"... the order as a whole was oppressive. Although, as I have said, orders may exceed two years, this order was designed not merely to be carried out over five years but to require the performance of each of the conditions, other than those relating to education, over a five year period. Not only did that require the supervision by a community corrections officer but in the present case there was further supervision of the applicant on an annual basis directed by the judge. Although in theory such a condition might be open on the legislation, in fact it misconceives the nature and duty of the sentencing court and the role of the supervising court. The object of the legislative scheme is that supervision should be carried out by qualified officers on an administrative basis. It is highly undesirable that courts should take on the role of actively administering such orders. Whatever the virtues of case management in the civil jurisdiction of the courts (and even to an extent in the criminal jurisdiction), a judge should not take on the role of both prosecutor and sentencer unless legislation clearly and unambiguously requires a judge to do so."
67 His Honour added:
"However well intentioned it may have been, the imposition of this condition of judicial supervision would appear to have confused the role of prosecutor and sentencing judge in a way which should not occur whether under the 1985 or 1991 Acts."
68 Although there are differences between that case and the present case, ordinarily one would expect that once a sentence had been imposed, and the order entered (recording the conditions of the bond), the Judge's role would end (cf Lapa (No 2) (1995) 80 A Crim R 398 at 402/403, per Clarke JA (Handley JA and Sully J agreeing); Miroslav Jovanovic (1999) 106 A Crim R 548, per Wilcox, Miles and Weinberg JJ at 551-559). Specific provision is made where a breach of the conditions of the bond is suspected (s98(1) (supra para 47)) However, that provision confers the power on the Court (as defined by s3), not the Judge who imposed the bond, although by convention a suspected breach may be referred back to the Judge who imposed the bond.
69 Here, any exception to the prohibition against entry into Wilcannia had to be expressed with certainty, and its administration handed to the Probation and Parole Service, being the body responsible for Mr Bugmy's day to day supervision.
70 Assuming that were done, would such a condition offend against what I have termed "the third principle" (supra para 59)? Should such a condition be characterised as unduly harsh or unreasonable or needlessly onerous? If the condition were to provide that an offender should not see his family, it would plainly be unacceptable. Such a condition would not in any obvious way relate to the offence or the purposes of punishment. It would be both harsh and unreasonable. Here Mr Bugmy's family and extended family lived in an area of Wilcannia known as The Mallee. They were said to be poor. Wilcannia is an isolated town in the north west of New South Wales. It is a long way from other major centres. Was the practical effect of exclusion from Wilcannia a severance of the physical link between Mr Bugmy and his family?
71 His Honour, in the exception provided, plainly recognised that, at least in the context of funerals, such a condition would be too harsh. He sought to ameliorate the operation of that condition by permitting Mr Bugmy to make application to him. However, in my view, the exception, even if properly framed, and appropriately administered by the Probation and Parole Service, would still be harsh and unreasonable. The term of the bond was almost two years. That is a long time to exclude or effectively exclude a person from normal physical contact with his family. Even in prison family members are permitted to visit. Whilst it was open to his Honour, in the interests of Mr Bugmy's rehabilitation, and appropriately protecting the community, to provide for his exclusion from Wilcannia for a short period (say six months), two years was too long. A short period may have given Mr Bugmy the respite from alcohol abuse that may have enabled him to have successfully tackled his problem. A two year exclusion from Wilcannia, in my view, was akin to "a general reform of his character" (cf Cox J in Williams v Marsh (supra) at 316). The condition was, in my opinion, unduly harsh and unreasonable.
72 The sentence was imposed on 21 February 2003. The bond has almost run its course. For what remains of the bond, I would quash condition (4). Mr Bugmy may, if he wishes, return to Wilcannia.