Bond, William v The Queen

[2008] NSWDC 387

CITATION:	BOND, William v R [2008] NSWDC 387
JUDGMENT DATE:	13 February 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence of the learned magistrate.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - assault occasioning actual bodily harm - maliciously damage property - revocation of Community Service Order - criminal record - unsuitable for Periodic Detention Order - offender on waiting list for bed at Oolong House - sentence suspended to attend rehabilitation
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 s 20(2)(a) Crimes (Sentencing Procedure) Act 1999 s 12
PARTIES:	William Bond Regina
FILE NUMBER(S):	07/42/0517
SOLICITORS:	Mr Edmunds for Mr Bond Director of Public Prosecutions

JUDGMENT

1. William Bond appeals against sentences imposed upon him by a magistrate sitting in the Local Court. The sentences were imposed on 12 October 2007. Mr Bond was convicted of assault occasioning actual bodily harm for which he received an eight month sentence of imprisonment to date from 12 October 2007. Two months of that is to be a non-parole period. In addition he was sentenced for maliciously damaging property for which he received seven days’ imprisonment to be served at the same time as the other sentence of imprisonment. He was also sentenced on a revocation of his Community Service Orders previously ordered by another court and on that revocation he received an eight month prison sentence with a non-parole period of two months, once again to be served at the same time.

2. The magistrate who was sentencing Mr Bond was, as I said, dealing with one charge of assault occasioning actual bodily harm which I will refer to now. Those events occurred on 25 August 2006. Mr Bond and his partner, Charmaine, had been to a party at a friend’s place. They had been drinking, by the looks of it, a good part of the night. Early on the morning of 25 August 2006 he and Charmaine were standing in Woodbridge Avenue, Moruya yelling at each other. At that point Mr Bond threw Charmaine to the ground and then took off his shoe and began hitting her to her head. He also punched her in the mouth and kicked her with his foot to her left rib area. He continued to hit her with his shoe and to punch and kick her. Police came and saw that Charmaine had redness and swelling on the right side of her face and lower lip. Charmaine later indicated that she did not want to co-operate in giving evidence but the police continued with the prosecution, understandably.

3. The second offence that the learned magistrate was dealing with was committed on 30 November 2006, that is the offence of maliciously damaging property. On that day Mr Bond was in the bar of the Monarch Hotel. He was asked to leave and he refused to. He then left and kicked the glass panel on a door. He was moderately affected by alcohol at the time.

4. The third matter, as I said, that the magistrate was dealing with was on the revocation of a Community Service Order. Mr Bond had received two Community Service Orders, each of 400 hours concurrent for an earlier offence of assault occasioning actual bodily harm committed on 28 March 2006 and for an earlier offence of affray committed on the same day. The circumstances of that offence he explained in the witness box today when Mr Edmunds called his client to give sworn evidence before me. He was under the impression that the victim of that attack had been supplying alcohol to some younger cousins of Mr Bond’s. That may explain a Community Service Order being given.

5. Mr Bond has a criminal record. He was born on 22 April 1987 so he turns twenty-one this year. He has convictions in the Moruya Children’s Court for using offensive language and breaking and entering. He also has traffic convictions and convictions for theft of cars. In 2004 he was convicted of the offence of riot and maliciously damaging property. He was given a control order in respect of those offences. As I said, in 2006 he committed an assault occasioning actual bodily harm and affray in respect of which he received a Community Service Order.

6. I have read a pre-sentence report which is part of exhibit A. It noted that he had been compliant with his supervision up until the current offences. He had been a motivated student earlier on. There is a history of alcohol abuse and the report noted that he appeared to have reduced his alcohol abuse. He was co-operative in the preparation of the report and was described as remarkably polite and respectful, demonstrating that he was able to make some positive changes towards a productive future. He is suitable for a medium level of supervision focusing on issues of drugs and alcohol and some psychological counselling. He is suitable for a Community Service Order but unsuitable for a Periodic Detention Order.

7. As I said, he gave evidence today about the circumstances of the offences which I have referred to. He explained that his attendance at the Community Service Orders had been fragmented owing to health problems. He explained the circumstance of the assault and the affray in 2006. He and his partner, Charmaine, have a daughter, Tyrecia, who is a baby girl. But she is in the custody of, or at least arrangements have been made for her safekeeping by, the Department of Community Services. There are court proceedings regarding her wellbeing. His partner Charmaine who also has behavioural problems and social problems which need attention, has been accepted and assessed at Weigili.

8. Mr Bond participated in an assessment for Oolong House on 8 February 2008 for alcohol and other drugs rehabilitation. He was assessed as suitable. He has been placed on a waiting list and will be told when a bed becomes available. He acknowledges that the sentence which he received from the magistrate was not unfair but that he would be prepared to use the time if he were not sent to gaol on sorting out his rehabilitation with the help of Oolong House. He acknowledged under cross-examination that he had previously been supervised and that he had failed to stop drinking after the life-changing event of the birth of his daughter. When asked why I could be confident that he would change now he said that his change was “not for me” but for his daughter and his family.

9. Mr Edmunds, who appears for him, puts before me a straightforward proposition by way of a sentence. His submission is that the head sentence of eight months should remain intact. However, instead of a non-parole period and full time custody, I should direct that the sentence be suspended under s12 of the Crimes (Sentencing Procedure ) Act 1999. I am inclined to accept that submission.

10. It is important to recognise the seriousness of this crime. When I say “this crime” I am referring to the assault occasioning actual bodily harm to his partner, Charmaine. It was a very nasty and vicious assault on a woman. That is not to be tolerated. I need to balance the necessity for that kind of conduct to be clearly branded as unacceptable by a harsh penalty against the evidence that there is some prospect or chance that Mr Bond may be changing his life around. If he has an opportunity to undertake supervision at Oolong House and rehabilitation, it may bring about a long term change. I am prepared to take the risk.

11. When I say “take the risk” really I am asking the community to take the risk because the order which I would make if I released him under a s 12 bond is that he would be allowed back into the community. He would attend Oolong House which would involve some protection or barrier between him and the community but, of course, he could leave or be dismissed at any time. It is the community which is bearing the risk in the order which I am about to make, perhaps in particular his partner, Charmaine. Nevertheless, looking at his life at this stage with relatively few serious convictions and an indication that he wants to change his life around, together with an application which he has put in successfully for rehabilitation, it might well be best that he undertakes that rehabilitation over the next eight months instead of spending two of them in full time imprisonment where exposure to that environment may make things worse for him.

12. Accordingly, I am going to uphold his appeal. The formal orders which I make are as follows. Under s 20 (2) (a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence of the learned magistrate. Under s 12 of the Crimes (Sentencing Procedure) Act I impose a sentence of imprisonment of eight months on Mr Bond but I make an order suspending the execution of the whole of the sentence for the whole of the eight months and I direct that Mr Bond be released from custody on condition that he enters into a good behaviour bond for a term of eight months. That good behaviour bond is to be subject to the following conditions:

(1) That he be of good behaviour for the period of eight months.
(2) That he notify the Registrar of this court of any change in his residential address.
(3) That he appear before this court if called upon to do so at any time during the term of the bond.
(4) That he subject himself to the supervision of the New South Wales Probation and Parole Service and accept their reasonable recommendations and directions related to rehabilitation for alcohol and drug issues and psychological counselling.
(5) That he accept the offer of a bed in Oolong House once it is offered to him.
Mr Bond is also to accept any reasonable recommendations and directions from the Probation and Parole Service concerning advice of rehabilitation on issues relating to domestic violence. Mr Bond is to report to the Probation and Parole Service office at Batemans Bay on or before next Wednesday 20 February 2008 at 4 pm.

13. In respect of the offence of maliciously destroying property, instead of imposing a sentence of imprisonment I make an order directing the offender to enter into a good behaviour bond for a period of eight months. That bond is to be subject to the same conditions as the previous bond.

14. In respect of the revocation of the Community Service Order instead of imposing a sentence of imprisonment I make a further order under s 9 of the Crimes (Sentencing Procedure) Act for Mr Bond to enter into a good behaviour bond for eight months on the same conditions as the first bond.

15. Mr Bond, you’ve won your appeal. I’ve listened to Mr Edmunds and I’ve decided to give you another chance. So instead of going to gaol for two months I have sentenced you to gaol for eight months which the magistrate did, but I have suspended the sentence and that’s on condition that you enter into a bond this afternoon and you’ve got to behave yourself for the next eight months, no trouble, take the bed if it’s offered to you from Oolong House and co-operate with Probation and Parole. Do you understand that?

APPELLANT: Yes

HIS HONOUR: And there are a couple of other things about telling the court if you change your address and you’ve got to turn up in court if you are asked to come along. Do you understand that?

APPELLANT: Yes.

HIS HONOUR: Now, this bond, at least the suspended sentence bond, is really tough. If you break the bond, you come back before court, probably me. It’s pretty hard not to send you to gaol. It’s not like an ordinary bond. It’s a suspended sentence so you could end up in full time gaol for five, six, seven, eight months, two, three, four months, so you could get something worse than you did before. You’ve really got to behave yourself. Do you understand?

APPELLANT: Yes.

HIS HONOUR: I’m giving you a chance because Mr Edmunds has convinced me that it’s worthwhile and you’ve given evidence in front of me so I want you to take this opportunity and see if you can change things in your life so that you and Charmaine and your baby can make a new life for yourselves. Do you understand that?

APPELLANT: Yes.

HIS HONOUR: All right. Good luck.

APPELLANT: Thank you.

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