Regina v Hyde

Court of Criminal Appeal (NSW)|2003-05-30|Before: James J, Smart AJ, Institutions J

The applicant breached conditions 3, 4, 5 and 6 of the bond. He also re-offended. He was arrested and returned to custody on 28 July 2002 in respect of other alleged offences. After reviewing the history of the matter the judge commented that she was not persuaded that there was any hope for rehabilitation, either supervised or unsupervised. She concluded: "I revoke the suspended sentence imposed by me on 3 May 2002 and I sentence the offender to a fixed term of 2 years to commence on 28 July 2002 and to expire on 27 July 2004. I decline to set a non-parole period. I find this is a matter where priority should now be given to deterrence rather than rehabilitation." Interpretation of s.99(1)(c)(i) of Crimes (Sentencing Procedure) Act.
The applicant submitted that the judge erred in fixing a total sentence of 2 years imprisonment.

Section 12(1) of the Act provides: "(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) Suspending execution of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order and (b) directing that the offender may be released from custody on condition that the offender enter into a good behaviour bond for a term not exceeding the term of the sentence."

Section 98(2) provides that if the court with which the offender has entered into the bond is satisfied that an offender has failed to comply with any of the conditions of a good behaviour bond it may, amongst other things, revoke the bond. Section 98(3) provides that in the case of a s.12 good behaviour bond, a court must revoke the bond unless the offender's failure to comply with the bond is trivial or there are good reasons for excusing the failure.

Section 99(1)(c) provides that if the court revokes the bond - "(c) in the case of a bond referred to in section 12 (i) the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order …".
The applicant submitted that s.99(1)(c) relates to that period of the sentence which is the subject of an order suspending its execution. In the present case the judge suspended only part of the sentence. Gamgee (2001) 51 NSWLR 707 established that she had power to do so.

Thus it was submitted that the judge had imposed a sentence on 1 October 2002 which it was not open to her to impose. Only 21½ months of the sentence was the subject of the order of suspension under s.12(1)(a) of the Act. Pursuant to s.99 it was only this part of the sentence which could become operative following the revocation of the bond.

The Crown accepted that these submissions were correct and agreed that the judge was constrained by the terms of s.99(1)(c)(i) to impose a sentence of imprisonment no longer than the term of that portion of the sentence which had been suspended.

The position taken by both the applicant and the Crown is correct,

The applicant submitted that the judge failed to give proper consideration to the setting of a non-prole period pursuant to s.44 of the Act.

Under s.44(1) of the Act as it stood at the time of sentencing, the court firstly sets the term of the sentence and secondly the non-parole period. Under s.45 a court may decline to set a non-parole period "if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient."

The applicant submitted that the judge did not adequately consider the requirements of s.44. It was submitted that that section mandates that in the ordinary course of events an offender will have the benefit of a period on parole following his time in gaol. The applicant submitted that it is only if the judge reaches an affirmative decision based on proper grounds that a judge is empowered to decline to set a non-parole period. Reliance was placed on Roos v DPP (1994) 34 NSWLR 254 at 261. That was a decision on the Sentencing Act 1989. Handley JA observed: "However [the judge's] reasons disclose nothing to indicate that he gave any consideration to his duty under s.5 to set minimum and additional terms unless he exercised the discretion under s.6 to set a fixed term."
Roos does not provide much support for the applicant's argument. The applicant pointed to this passage in the judge's remarks of 1October 2002: "Once again he seeks to rely upon the support of the Salvation Army to enable me to find there are prospects for rehabilitation and to impose a sentence which will allow him to be supervised upon release. Unfortunately I am not persuaded that there is any hope for rehabilitation, either supervised or unsupervised."
It was submitted that such a process of reasoning does not properly found a decision to depart from the terms of s.44 and that it was not incumbent upon the applicant to demonstrate that he had "prospects of rehabilitation" so as to bring himself within s.44.

It was further submitted that the applicant was entitled as a matter of law to be sentenced in accordance with s.44 unless the judge came to one of the stipulated opinions which would trigger the proper application of s.45. Simply being "not persuaded that there was a hope for rehabilitation" was not a sufficient basis upon which to be satisfied under the terms of s.45.

The remainder of what the judge said was: "This offender has been offered more opportunities than most. He has chosen to ignore these opportunities and continue to resume a life of drugs and alcohol and mixing with people who clearly assisted his downfall … this is a matter where priority should now be given to deterrence rather than rehabilitation".
It was disappointing, to put it mildly, that the applicant failed to comply with the terms of the bond and re-offended when much effort had been directed towards his rehabilitation and he had been warned so trenchantly.

The applicant relied upon an alternative basis, namely that error having been demonstrated in relation to the first ground, the court was in any event bound to re-sentence and to form its own view on whether there should be a non-parole period. That submission is correct.

The Crown contended that the judge adequately considered the terms of s.44 and that that section merely required a court in setting a term of imprisonment to set a non-parole period not less than three-quarters of the term unless there were special circumstances for it being less. There was no prescription against setting a non-parole period which was more than three-quarters of the term of the sentence. Section 44 requires reasons where the non-parole period is less than three-quarters of the term..

The Crown submitted that there was an obvious basis for declining to set a non-parole period, namely, that having regard to the applicant's failure to take the opportunity given to him to rehabilitate himself and his commission of further offences there was no purpose to be served in a period of supervised liberty after his release.

The Crown directed the Court's attention to s.45 summarised earlier. It was sufficient if it was open to the judge to conclude that it was appropriate to decline to fix a non-parole period for any of the reasons mentioned. That included "any reason (other than those specified in sub-paragraphs (a) and (b)) that the Court considers sufficient". The Crown contended that such reasons existed.

The Crown accepted that the offence of break, enter and steal did not intrinsically require imprisonment without parole. However, it contended that as the applicant committed the offence in breach of a bond and had a prior record of like offences (9 previous break, enter and steal offences, 12 stealing offences and 7 matters for stealing/illegal use of motor vehicles) it was within the judge's discretion to impose a term of imprisonment without provision for early release to parole, especially after he had breached his bond, not taken advantage of the opportunity for rehabilitation and had instead re-offended.

The Crown pointed out that the judge had relied on Ponfield (1999) 48 NSWLR 327 which explained that the seriousness of the offence was enhanced if the offender, amongst other matters, had a prior record particularly for like offences and also if the offence was committed while the offender was on conditional liberty.

The Crown submitted that these factors, the need for specific and general deterrence and the offence itself meant that a term of 2 years was within the range of the judge's sentencing discretion. Further, it was open to the judge to hold that there was no realistic hope for the applicant's rehabilitation and therefore no utility in a period of parole. The Crown submitted that the applicant's second ground of appeal should fail.

In response to the additional alternative ground advanced on behalf of the applicant, namely that this Court was bound to re-sentence, the Court takes into account the submissions made by the Crown in relation to the non-parole period, mutatis mutandis.

While the offence of break, enter and steal is a serious one, fortunately only a wrist watch was taken. While some damage was done to the window and the locking device and the washing machine lid was dented this was not an example of extensive damage to property. There was no violence. It was not one of the more serious instances of the offence of break, enter and steal. Even allowing for the aggravating factors the sentence of 2 years for the offence was at the top of the permissible range of sentences. The judge has proceeded upon the premise that the period of imprisonment will have no effect upon the applicant and that he will return on his release to his old ways of drug abuse and the commission of offences.

While that may well happen bearing in mind his past behaviour, it is not a foregone conclusion. For there to be no period of supervision after his release is highly undesirable and not in the interests of the community. Advantage should be taken of what prospects there are for rehabilitation. Some attempt should at least be made to encourage him to set out on the right path and some support should be provided in his early days after release from gaol. There should be supervision. The argument that the parole period should be of the ordinary length is correct.

I propose the following orders: 1. Leave to appeal against sentence granted

In lieu of the sentence imposed, the applicant is sentenced to imprisonment for 21 months 15 days commencing on 28 July 2002 and expiring on 12 May 2004 with a non-parole period of 16 months expiring on 27 November 2003 on which date the applicant is to be released to parole. The applicant's parole is to be supervised and the applicant is to comply with all reasonable conditions stipulated by the Probation and Parole Service.
JAMES J: I agree with the judgment of Smart AJ. The orders of the Court will be as proposed by his Honour.

Last Modified: 06/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Regina v Hyde [2003] NSWCCA 154 HEARING DATE(S) : 30 May 2003 JUDGMENT DATE : 30 May 2003

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