"I have more than once deprecated the tendency to insert unusual conditions into recognisances 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 ; Baddock v. Steel . To my mind they tend to favour of excessive paternalism and in extreme cases of tyranny. I realise that views differ on this matter, but mine are strongly held."
16 The length of the recognisance parallels the length of the maximum sentence of imprisonment provided by law for the offence. His Honour gives no particular reason for such a lengthy term and as well as extending the other conditions for the whole term requires Probation and Parole supervision for the whole term. Such a term is inconsistent with his Honour's finding that the applicant came forward for sentence, having "cleaned up his act" and "smelling sweet as a rose in front of the court".
17 In both contended respects, I conclude that his Honour fell into error. The range and the conditions of the recognisance were needlessly onerous: see Regina v. Harvey (1989) 40 A Crim R 102.
18 In my view supervision should only continue for as long as the Service deems it necessary and its expertise should enable it to deal with alcohol and anger management. I see no particular need for a condition that the applicant attend TAFE in a recognisance which, in my view, should be imposed. I cannot leave the matter without noting certain of his Honour's remarks and the manner of cross-examination of the applicant on the sentence proceedings. These trouble me greatly. Many of the remarks were disparaging and patronising. Despite objection, the Crown Prosecutor was permitted, indeed encouraged, to cross-examine in an overtly hostile fashion. His Honour's interventions would only have carried the impression of hostility on his part also to an impersonal independent bystander. His Honour's observations as to what he would do if the applicant breached the recognisance display an ominous fixity of attitude and a lack of impartiality to that bystander.
19 As much as at a trial, judicial detachment and objectivity in sentencing need to be clear: see the remarks of Kirby, P. in Chow v. Director of Public Prosecutions (1992) 28 NSWLR 593 at 606A-B, 608E-G, 612C-E. The observations of Street, CJ., with whom Slattery, CJ. at CL. and Wood, J. agreed, in Regina v. Davies (1984) 3 NSWLR 572 and the principles from the cases cited by him at 574 to 575 are also apposite, as are those of Wood, CJ. at CL. with whom James and Adams, JJ. agreed in Regina v. Esposito (CCA, unreported 20 November 1996 at 43 to 50).
20 Such an attitude as is here shown to have been displayed towards a party in litigation can suggest a lack of impartiality which undermines the necessary public confidence in the fairness of the judicial process. See the discussion by Einstein, J. in Gibson v. O'Keefe (unreported 20 May 1998).
21 In the view that I have formed, it is not necessary for me to decide why it was that his Honour fell into error, nor whether there was other legal error than that contended, notwithstanding my disquiet at what appears in the transcript. It is sufficient that I note the matters I have referred to and my conclusions that his Honour did err in the result.
22 I would propose leave be granted, the appeal upheld and his Honour's order below be quashed. In lieu, sentence be deferred upon the applicant entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of a further two and a half years (which will mean the applicant will have been at conditional liberty for a total of five years and will have been on recognisance for three years for this offence) and that the recognisance be conditioned that the applicant come up for sentence if called on. The recognisance is to be further conditioned that he place himself under the care and supervision of the Victorian counterpart of the Probation and Parole Service for as much of the term of the recognisance as that Service deems appropriate and obey all reasonable directions and observe all reasonable requirements of that Service including particularly with regard to the use of alcohol and appropriate counselling for alcohol abuse and anger management.
23 Any failure to observe these directions or requirements, particularly as to attending such counselling, will constitute a breach of this recognisance.
24 The applicant is to report to the Broken Hill office of the Probation and Parole Service on or before 5.00 pm Monday 23 August 1999 and report as directed to the appropriate office of the Victorian Department. The recognisance may be entered before a Magistrate within seven days from today.
25 I direct a copy of the recognisance be faxed when it is executed to the Broken Hill office of the Probation and Parole Service.
26 WOOD, CJ. at CL: I agree with the orders proposed by Justice Greg James and with the reasons therefor.
27 I similarly share his Honour's concern in relation to the somewhat aggressive manner in which the cross-examination was pursued, and allowed to continue, and with certain of the observations by his Honour during the proceeding in relation to sentence.
28 The impression left on the papers is one of distinct hostility towards the applicant, and of threatened retribution should he be called up for breach of the recognisance.
29 For example, in the reasons for sentence his Honour observed:-
"Now, you have been lucky, because this trial has been hanging fire for two and a half years. In that two and a half years you have cleaned up your act. You have done all the beaut things to come up smelling sweet as a rose in front of the Court. You are back with your wife. You say you are looking after your children. You are working in TAFE holidays. You are pursuing courses. Don't let me stop you doing that, but just understand this, that you had better keep on doing that for the next five years because I do not retire until the year 2010 and I will be around ...
Any such breach will be referred to me in the first instance and I want you clearly to understand that if it is at all humanly possible, if you break this bond in the next five years, I want you brought back in front of me. If you are, Ms. McSpedden can talk till she is blue in the face and it will not stop me from putting you in gaol on the basis of what the jury has convicted you of on this occasion. Is that abundantly clear to you?"
30 Examples of the less than dispassionate, and somewhat patronising, manner in which the sentencing proceedings were conducted include additionally the following passages in the course of the cross-examination of the applicant:-
"Q. Since that time you've been back in the Mildura area, what do you say to his Honour about your consumption of alcohol? A. I haven't drunk since then.
Q. During the time between 1994 and 1996 when you attracted these criminal convictions mainly in relation to assaults, were you drinking alcohol on a regular basis? A. No, only on weekends.
Q. And any other time?
HIS HONOUR: I am going to give such weight to answers to leading questions as I think they deserve to be given, Miss McSpedden.