Director of Public Prosecutions (NSW) v Cooke

[2007] NSWCA 2

Reported Decision: 168 A Crim R 379

New South Wales

Court of Appeal

CITATION:	Director of Public Prosecutions v Cooke & Anor [2007] NSWCA 2
HEARING DATE(S):	31/01/2007
JUDGMENT DATE:	7 February 2007
JUDGMENT OF:	Sully JA at 1; Howie JA at 2; Price JA at 40
DECISION:	1. The record of the District Court sitting in its criminal jurisdiction at Campbelltown in the proceedings before his Honour Acting Judge Mahoney QC on 28 September 2006 of Regina v Glen Cooke 06/21/3111 being proceedings for breach of five bonds entered pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on 5 September 2005 with the Liverpool Local Court be called up into this Court; 2. The determination by Mahoney ADCJ in those proceedings to take no action on the breach of the five bonds under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 is quashed; 3. The proceedings for the breach of the five bonds be remitted to the District Court for determination according to law.
CATCHWORDS:	Courts and Tribunals - Proceedings in nature of Certiori - Failure by Judge to revoke bonds under s 12 of Criminal Procedure Act - whether error of law in reasons given - proper approach to s 98(3)(b) of the Act - Criminal Law - breach proceedings for s 12 bonds - whether Judge erred in law in failing to revoke bonds - relevant consideration in determining proceedings under s 98 of the Act.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 - ss 12, 98, 99 Criminal Appeal Act 1912 - s 5D Supreme Court Act 1970 - ss 23, 69(4)
CASES CITED:	R v Tolley [2004] NSWCCA 165 R v Graham (2004) 62 NSWLR 252 Director of Public Prosecutions v Burrow [2004] NSWSC 433 R v Marston (1993) 60 SASR 320 R v Zamagias [2002] NSWCCA 17
PARTIES:	Director of Public Prosecutions v Cooke & Anor
FILE NUMBER(S):	CA 40860/2006
COUNSEL:	D. Arnott SC - Claimant A. Francis - First Opponent
SOLICITORS:	S. Kavanagh - Claimant S. O'Connor - First Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/3111
LOWER COURT JUDICIAL OFFICER:	Mahoney ADCJ
LOWER COURT DATE OF DECISION:	28/09/2006

CA 40860/2006

SULLY JA
HOWIE JA
PRICE JA

WEDNESDAY 7 FEBRUARY 2007

DIRECTOR OF PUBLIC PROSECUTIONS v COOKE & ANOR

1 SULLY JA: I agree with Howie JA.

2 HOWIE JA: This a summons by the Director of Public Prosecutions (the Director) seeking relief in the nature of certiorari and other consequential orders in respect of a decision of Mahoney ADCJ (the Judge) to take no action in respect of breaches of five bonds to which the first opponent (the offender) was subject under s 12 of the Crimes (Sentencing Procedure) Act (the Act). Except for one matter of detail, to which I shall refer later, the relief sought is not opposed.

3 The offender was convicted in the Local Court of three offences of break, enter and steal and two offences of malicious damage. The offences were committed between December and February 2005. On 5 September 2005 at Liverpool Local Court a magistrate sentenced the offender on each of the break, enter and steal offences to imprisonment for 15 months with a non-parole period of 10 months, and for each of the malicious damage offences to imprisonment for 6 months. Each of the sentences of imprisonment was suspended on condition that the offender enter into a bond in accordance with s 12 of the Act. There was a condition of the bond requiring the offender to undertake drug and alcohol rehabilitation. The offender was also ordered to pay compensation.

4 On 3 February 2006 the offender was arrested for an offence of malicious wounding while in company. The offence arose out of fight in which he participated with a co-offender outside the Cabramatta Railway Station. It was alleged that the offender with his co-offender kicked and punched the victim causing him facial injuries some of which required sutures.

5 The offender pleaded guilty to that offence in the Local Court and was committed to the District Court for sentence. There was no dispute that the offence for which he was to be sentenced by the Judge was a breach of the requirement of each of the bonds that the offender be of good behaviour. Section 98 of the Act relevantly provides as follows:

98 Proceedings for breach of good behaviour

(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, or
(c) with the offender’s consent, any other court of superior jurisdiction,
may call on the offender to appear before it.

………………………………


(1C) For the purposes of subsection (1) (c), a court is of superior jurisdiction to the court with which an offender has entered into a good behaviour bond if it is a court to which the offender has (or has had) a right of appeal with respect to the conviction or sentence from which the bond arises.

(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.

6 It is clear that pursuant to s 98(1)(c) the Judge had jurisdiction to deal with the breach of the bonds notwithstanding that that they were entered with the Local Court because the offender agreed to the District Court dealing with the matters when sentencing him for the wounding offence.

7 The Judge ultimately determined to impose a sentence of imprisonment for 18 months upon the offender for the wounding offence but suspended that sentence upon the offender entering into a bond under s 12. He also determined not to take any action in respect of the breaches of the five bonds. With respect to the sentence imposed for the wounding offence the Crown has appealed to the Court of Criminal Appeal under s 5D of the Criminal Appeal Act. That appeal was to be heard at the same time as the summons.

8 Section 98(3) of the Act requires that a court revoke a bond under s 12 unless one of either two findings are made: that the offender’s failure to comply with the conditions of the bond was trivial in nature or that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond. Here the failure to comply with the conditions of each of the bonds was the commission of the wounding offence, a breach of the condition to be of good behaviour. Therefore, unless the Judge was satisfied that the failure to be of good behaviour was trivial or that there were good reasons for excusing that failure, s 99 of the Act operated with the consequence that the order suspending the sentence ceased to have effect and certain consequential provisions of the Act applied. The operation of s 99 and the power of a court under that section were considered by the Court of Criminal Appeal in R v Tolley [2004] NSWCCA 165 and R v Graham (2004) 62 NSWLR 252. They need not be considered further in this judgment.

9 In his sentencing remarks the Judge gave reasons for not taking action on the breach of the bonds. They were somewhat discursive but were as follows:

The Crown has kindly drawn my attention to the fact that under s 98(3) the Court is directed by the Parliament to revoke any such bond unless it is satisfied either that the failure to comply with the conditions of the bond was trivial or that there are good reasons for excusing the offender's failure to comply with the condition of the bond and the Crown has quite rightly submitted that the commission of this offence on the night in question, 3 February 2006 could hardly be regarded as a trivial failure to comply with the conditions of those five bonds. He has also submitted that there would not be any grounds for this Court in coming to a finding that there are any good reasons for excusing his failure to comply with the conditions of the bond. At that stage I am constrained to depart from the submission of the Crown. In my view there are very good reasons for not taking any action on the breach of the bond. Those reasons can best be summarised this way: the whole purpose and structure of the Crimes (Sentencing Procedure) Act as I understand it is designed not only to punish where punishment is necessary and not only to punish in a condign fashion where condign punishment is necessary but also to ensure that the Court visits every possible avenue of sentencing which could be visited short of imposing a full time custodial sentence if the circumstances of the case merit such lesser form of punishment than full time custodial sentence.

In this case the man without the record seems to me to have been the main aggressor. He was the one who had the cause for offering to fight. He was the larger of the two aggressors. I did not bother to look at the video. It is there if anyone else ever wants to look at it, as Exhibit B but I am satisfied I can adequately deal with the case by confining myself to the written word of the evidence on these pleas. As I said he was bigger. He was the main aggressor and he was the younger. He was the one who was insulted and Cooke just went along because his friend decided to involve himself. Cooke is the one with the record. As I have said Cooke's five prior convictions all seem to me to have been senseless offences no doubt committed when he was under the severe influence of alcoholic liquor, if not of drugs as well, committed in places where there was no personal violence offered to anyone at times of the day I think when there was nobody else about. They demonstrated that he was leading a very unstructured life and some evidence that Cooke gave in this Court today seems to me to be very important to bear in mind.

On the night in question he was not the one who had been insulted. He was older than the one who was insulted. The younger one was the fellow who in effect called out the victim and suggested that there be a fight. In the ordinary course of events, one would expect that the older would try and restrain the younger or if he could not restrain him from getting into the fight would walk away from it or stay out of it, but he did not and I think perhaps the explanation as to why he did what he did on the night in question can very easily be identified in one particular sentence in an answer he gave today. It was not a direct answer to the question. It just seemed to be an add on to something else he said but his words were, "It's hard to have no friends".

What took place on this night was aimless. It was reprehensible but it was understandable when one looks at the personal background of the two offenders with the lack of a male role model, at least during their formative years, with problems with work, problems at school. Both of them say that their schooling cut out in year nine. The younger one was expelled from school because of his disruptive conduct. The older one preferred to drink with his friends rather than go to school and apply himself to personal improvement. There is a very, very great need for both of these young men to get all of the assistance they possibly can at this stage of their life and to get it urgently; to get it from a government instrumentality; to get it under circumstances where they have got a sentence hanging over their heads knowing that it is up to them to respond positively to the assistance that is going to be provided to them by the Probation and Parole officers; and knowing that if they do not cooperate with the Probation and Parole officers then the next stop is going to be into gaol.

For all of the above reasons I have come to the conclusion that I have already foreshadowed that the appropriate sentence for this is a term of imprisonment for eighteen months.

10 Later, after the Judge had imposed sentence on the offender, he stated:

………And for the reasons previously expressed, this in relation to you Mr Cooke, I take no action on the breaches and if I could seek to summarise those reasons, they are: that the range of sentencing options open to me as against the need that I see that you have for being guided and assisted along the path to rehabilitation militate against my taking any action on the breaches of the bond. But that does not mean that I regard those five previous offences as being matters of no consequence.

11 The offences for which the offender had been before the Local Court were attacks upon premises, in two cases shops and in the third a TAFE building, where the offender gained entry by smashing a window and then stole or damaged property. The offences were committed while the offender was drunk.

12 The evidence before the Judge was that the offender, who was aged 20, had an alcohol and cannabis problem for which he had received assistance in a rehabilitation course called Triple Care, run by Mission Australia. He gave evidence before the Judge that he had made a little progress but needed further assistance. He saw a counsellor once a fortnight. He had employment with a tree lopping service although there was not regular work available to him. He expressed some remorse for the offence. There was in evidence a supportive reference from the counsellor at Triple Care as to the progress made by the offender but it failed to acknowledge the further offence or the fact that it was committed while the offender was under the influence of alcohol.

13 Before this Court would intervene in what was largely a discretionary judgment made by the Judge, the Director must show that there has been an error of law appearing on the face of the record of the court. The record for this purpose includes the reasons expressed by the Judge for his determination: see s 69(4) of the Supreme Court Act. It is not enough that this Court would have exercised the jurisdiction differently or that errors of fact or reasoning appear in the judgment of the court below. The Director asserted that the error of law was fundamental to the determination to take no action on the breach of the bonds because the reasons given by the Judge for excusing the breach of the bonds could not amount to “good reasons” within the terms of s 98(3)(b) of the Act.

14 A question then arises as to the extent of the power conferred on a court under s 98(3)(b) to excuse a breach of a bond entered into pursuant to s 12. It should be noted at the outset that what the court is required to consider is whether there are good reasons to excuse the failure to comply with the conditions of the bond in circumstances where that failure is not trivial in nature. The focus must principally be upon the behaviour giving rise to the failure to comply with the conditions of the bond and whether that behaviour should be excused.

15 The Judge during his sentencing remarks in the longer passage set out above indicated that he had reached the conclusion that “there are very good reasons for not taking any action on the breach of the bond”. That is, with respect, not answering the question posed by the section and the difference seems to me to be more than mere semantics. I accept that, if the court concludes that there are good reasons to excuse the failure to comply with the conditions of the bond, it follows that the court will take no action on the breach. But as I have noted already, the principal consideration raised by s 98(3)(b) is the conduct giving rise to the failure and whether that conduct can be excused. A conclusion that there were good reasons for not taking action on the breach of the bond may be found in considerations other than the conduct giving rise to the breach. For example, a decision not to take action on the breach may be based upon the subjective circumstances of the offender at the time of the proceedings for revocation of the bond. Yet that is a matter that, in my opinion, is irrelevant to a determination under s 98(3)(b).

16 Clearly if there are extenuating circumstances of sufficient importance to explain the behaviour giving rise to the breach, the court can exercise its jurisdiction to take no action on the breach. So, for example, if the breach is the failure to report to a probation officer there might be good reasons to excuse that failure if the offender had some acute personal problem at the time such as illness or a death in the family. If the breach is a further offence, the failure to be of good behaviour might be excused because of extenuating circumstances leading to the offending behaviour. An example might be driving under the influence of alcohol in an emergency situation. In such a case the court is considering whether the conduct represents a contumelious act of defiance or disregard of the conditions of the bond entered into with the court.

17 There is a live issue as to the extent, if any, to which a court can have regard to matters other than the behaviour giving rise to the breach in determining whether to excuse the breach, such as the impact upon the offender of the consequences of the breach. The issue was considered by Hidden J in Director of Public Prosecutions v Burrow [2004] NSWSC 433. His Honour stated:

[24] The question posed by s 98(3)(b) is whether “there are good reasons for excusing the offender’s failure to comply with the conditions of the bond”. Where the breach of the conditions of the bond is a further offence, this requires the court to focus upon the circumstances of that offence. Mr Lakatos postulated the example of a man who drives with the prescribed concentration of alcohol in his blood, but only for the purpose of taking his pregnant wife to hospital after she has unexpectedly gone into labour. That could well be such a case, although this is not to suggest that para (b) is confined to offences with extenuating circumstances of that kind. It is a matter about which generalisation is not possible, and whether the paragraph might properly be invoked must depend on the facts of the case at hand.

[25] Where the offence is relatively minor, it might be appropriate to weigh its gravity against the consequences of revocation of the bond, particularly where the suspended sentence is a long one. One of the matters to which King CJ had regard in Marston (at 322) was the “marked disproportion between the seriousness of the breaching offence and the length of the sentence which is activated by the revocation of the suspension”. (Of course, I am not speaking here of offences which are trivial in their nature, for which separate provision is made in para (a).)

[26] An assessment of the seriousness of the offence constituting the breach may require that regard be had to the offender’s subjective circumstances. However, in my view, para (b) does not permit the excuse of such a breach by reason only of his or her subjective circumstances at the time a court is considering revocation of the bond. Nor, it seems to me, can the court have regard to the severity of the penalty to be imposed for the fresh offence.

18 The reference to Marston in that passage is a reference to R v Marston (1993) 60 SASR 320. That was a decision of the South Australian Court of Criminal Appeal concerned with a section, not dissimilar to s 98, giving a court power to refrain from taking action on a bond where the non-compliance was trivial or “that there were proper grounds upon which the failure should be excused”. In that case the offender had been given a suspended sentence for an offence of armed robbery. In breach of the bond entered into by the offender as a pre-condition for the suspension of the sentence, she had been convicted of larceny of two muffins and a butter knife. The court accepted that the offence was committed on the spur of the moment because she was hungry. King CJ described her criminality for the behaviour giving rise to the breach in this way:

It is clear that the appellant's impulsive actions were not motivated by any settled resolve to behave dishonestly, although, of course, necessarily there was dishonesty involved in the offence, but rather by a foolish and somewhat irresponsible inclination to satisfy her hunger by means of the muffins which were displayed on the breakfast table, and of course by using the knife to spread the butter on them.

19 The Court, in deciding that the Judge in revoking the bond had erred in the exercise of discretion, placed significant weight, not only on the circumstances of the behaviour giving rise to the breach, but also on the “marked disproportion between the seriousness of the breaching offence and the length of the sentence which is activated if the suspension is revoked”. King CJ, with whom Duggan J agreed, concluded at 321:

For my part, I think that the activation of a severe sentence for robbery with violence is not justified by the relatively minor nature of the offending which constitutes the breach. I think that that consideration, together with the evidence of the psychological problems confronting this appellant, constitute proper grounds upon which the failure to comply with the condition of the bond to be of good behaviour should be excused. I think that the learned judge was in error in the way in which the discretion was exercised.

Perry J also agreed in substance with the reasons of the Chief Justice.

20 It is unnecessary in order to determine the present matter to form a decided view on whether the approach taken in Marston should be followed in this State in applying s 98(3)(b). Although the wording of the relevant sections in the two jurisdictions is similar, there are two important differences between the regime in place in South Australia when Marston was decided and the regime in place in this State. Firstly a suspended sentence is more restricted in this State because it can be given for no more than two years. The sentence suspended in Marston was one of three years. Secondly, and perhaps more significantly, the impact of the revocation of the bond can be ameliorated in this State by ordering that the sentence that is enlivened by the breach be served by periodic detention or home detention. There has also been a recent change to the legislation so that the non-parole period is fixed at the date of revocation and not when the sentence was passed but suspended: see ss 12(3) and s 99(1)(c)(ii). These differences indicate to me that, assuming that a court could take into account the impact of the revocation of the bond, it would be a rare case indeed in which it would be appropriate to do so in this State.

21 But two matters should be emphasised from Marston: firstly the determination under s 98(3)(b) should be made bearing firmly in mind that generally a breach of the conditions of the bond will result in the offender serving the sentence that was suspended and, secondly, the principal consideration, if not the only one, is upon the conduct giving rise to the breach. As to the first of those matters King CJ stated:

I repeat what I said in R v Buckman (1987) 47 SASR, 303 at 304: "There is a clear legislative policy that in general a breach of a condition of a recognizance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non law abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance."

It is of great importance that the courts adhere to that principle. Departure from it by the nonrevocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.

22 Perry J stated:

I agree with the observations which have fallen from His Honour the Chief Justice. In doing so, I would repeat the comments which I made in R v Lawrie, (unreported) (Court of Criminal Appeal) 16 November 1992, judgment No S3704: "To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out."

23 With respect I would endorse those sentiments. There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.

24 As King CJ pointed out, it should not be forgotten that before suspending a sentence the court must have reached the view that nothing but a sentence of imprisonment was appropriate to punish the offender for that crime: see R v Zamagias [2002] NSWCCA 17. The suspended sentence is not an alternative to a bond and should not be treated as such. The suspension of the sentence of imprisonment was an act of mercy designed to assist the offender’s rehabilitation or for some other purpose to benefit the offender on the understanding that, if the offender did not fulfil the conditions of the bond, the sentence would be imposed. Therefore, generally speaking, there can be no unfairness in requiring the offender to serve the sentence when the obligations under the bond have been breached.

25 Whatever else might be said about the reasons of the Judge in the present case, there appears to be no consideration at all of the policy behind suspended sentences. Nor is there any obvious appreciation of the intention of Parliament, that is made clear from the special provisions made for bonds under s 12 and the need for “good reasons” to be found, that in the ordinary case a failure to comply with the conditions of the bond will result in its revocation. The court does not determine the existence of good reasons in a vacuum. It does so in the context of the policy and purpose behind the suspended sentence regime and by recognising that by excusing the breach the implicit threat made to the offender at the date of the imposition of the suspended sentence will not be carried out. If the realisation of this threat is avoided in inappropriate cases, it can only result in the lowering of respect for the orders of the court by the offender and the public in general.

26 However, there seem to me to be more obvious errors of law in the approach undertaken by the Judge, as was conceded by Ms Francis on behalf of the offender. As Hidden J noted in Burrows, the sentence to be imposed for the offence giving rise to the breach cannot be taken into account in determining whether to revoke the bond. The penalty to be imposed for the offending behaviour is simply irrelevant to the determination of whether good reasons exist to excuse the breach. Of course a consideration of the seriousness of the behaviour giving rise to the breach and what that behaviour discloses about the attitude of the offender with regard to the obligations imposed by the bond will be relevant both to a determination whether to revoke the bond and to an assessment of the sentence to be imposed for the offence giving rise to the breach. But they have different roles to play in the exercise of the discretions arising from the two proceedings. In sentencing for the offence they may indicate, for example, the need for a penalty reflecting specific deterrence. But this is a matter that has no relevance in determining whether to excuse the breach.

27 It is important that a court in the position of the Judge in the present case recognise that there are two distinct jurisdictions being exercised when determining the sentence for an offence that is also a breach of a s 12 bond. Each jurisdiction requires the court to exercise a discrete and independent discretion. Of course they are not completely independent jurisdictions and the exercise of the discretion to revoke the bond might indirectly influence the sentencing discretion. For example, if the court determines to revoke the bond and the sentence previously suspended thereby comes into operation, the court would not then have the power to impose a suspended sentence for the offence that brought about the breach, even if that were thought to be an otherwise appropriate sentence: see s 12(2) of the Act. There are other ways in which the decision under s 98(3)(b) can indirectly affect the sentence to be imposed for the offence by making a sentencing option either unavailable or inappropriate.

28 It is clearly preferable that, wherever possible, the one court should consider both the breach and the sentence for the offence causing the breach: there may be overlapping findings of fact to be made in the two proceedings and questions of totality would arise if the bond were revoked and a further term of imprisonment imposed for the offence. But it is of crucial importance that the breach proceedings be resolved before the sentence is imposed for the offence. This is because, as I have indicated, the result of the breach proceedings can affect the sentence to be imposed for the offence but the sentence for the offence is irrelevant to a determination of whether there are good reasons to excuse the breach.

29 This is not what happened in the present case and it is a good example of how the proceedings can miscarry if the court does not keep the two issues to be decided separate and distinct. It is obvious from both the reasons given for excusing the failure under s 98(3)(b) and the manner in which the Judge approached the issue of whether to excuse the breach that the sentence for the wounding offence was determined before the issue of the breach was resolved. The judge decided to excuse the breach in order to give effect to the sentence he imposed for the offence. This resulted in the Judge failing to ask himself the correct question in relation to the breach proceedings and in determining those proceedings by taking into account exclusively an irrelevant consideration.

30 In the longer passage of the sentencing remarks quoted above the Judge answers the Crown contention that there are no good reasons to excuse the breach by, firstly, a consideration of the sentencing principles espoused in the Crimes (Sentencing Procedure) Act and next a consideration of issues of parity between the applicant and his co-offender. Both of these matters might have been relevant to assessing the sentence for the offence but they had absolutely nothing to do with deciding whether the breach should be excused.

31 The Local Court had determined that suspended sentences should be imposed for the break, enter and steal and malicious damage offences. The Judge could not determine that there were good reasons for excusing the breach on the basis that it was inappropriate to impose a sentence of imprisonment on the offender for those offences. Considerations relevant to determining whether to breach the bond did not include the necessity for the applicant to be rehabilitated rather than imprisoned. The Local Court in deciding to impose the suspended sentences no doubt took that matter into account and the Judge was not sitting by way of appeal from the decision of the magistrate to impose the suspended sentences. Reflections on the policy of the Crimes (Sentencing Procedure) Act or an acknowledgment that a sentence of imprisonment should be a last resort were irrelevant considerations in determining whether the breach should be excused.

32 There is another error of law apparent in the Judge’s reasons that resulted from the approach taken by the Judge in determining the sentencing proceedings first and then the breach proceedings. In the shorter quote from the sentencing remarks above, the Judge, when summarising his reasons for not revoking the bonds, referred to the “range of sentencing options open to me”. Putting aside the question of whether the Judge was entitled to take into account the impact of the consequences of the revocation of the bond, it is clear that the Judge erroneously limited his consideration of the options available to him on revocation of the bond by his determination of the sentence for the offence. The reference to the “range of sentencing options” can only be understood by having regard to the Judge’s findings in his remarks on sentence.

33 The Judge thought that by reasons of parity he could not impose on the offender a sentence harsher than that imposed upon the co-offender. Yet the co-offender was not eligible for periodic detention or community service. Therefore, so his Honour reasoned, he could not impose either of those sentencing options or a harsher sentence on the offender. It is inappropriate to analyse further the Judge’s reasoning in determining the sentence to impose for the wounding offence because that sentence is subject to a Crown appeal. But the point for present purposes is that the Judge considered that it was a relevant factor in determining the breach proceedings that he was limited in some way by the sentencing options open to him for the wounding offence and the need, as he saw it, to assist with the rehabilitation of the offender. Again they were extraneous considerations when exercising the functions under s 98(3)(b).

34 Hidden J in Burrows held that the subjective circumstances of the offender are generally irrelevant in determining whether there are good reasons to excuse the breach under s 98(3)(b) except to the extent that those subjective circumstances are relevant to a consideration of the breach itself. So, for example, the fact that the offender suffers from a mental disorder that may account for the failure to comply with the conditions of the bond will be a relevant factor in determining whether to excuse the breach: see Marston. But subjective features of the offender at the time of the breach proceedings are irrelevant to the decision whether good reasons exist to excuse the breach. They may of course have some role to play in what order is made after revocation when determining whether the consequential sentence is to be served by way of full-time custody, or an available alternative and the length of the non-parole period to be imposed. But they cannot affect the decision whether to revoke the bond.

35 In the present case it was an error of law for the Judge to take into account the need for rehabilitation of the offender by supervision of the probation service when deciding whether to excuse the breach. The error is a result of the Judge both approaching the determination of the breach proceedings in light of the sentence imposed for the wounding offence and by determining the breach proceedings by focusing on the consequences of the revocation of the bond to the exclusion of any other consideration.

36 Put simply the relief sought in the summons must be granted because the reasons given by the Judge for taking no action on the breach could not at law amount to good reasons for excusing the breach under s 98(3)(b). Further, there is nothing in the sentencing remarks that could possibly amount to good reasons under s 98(3)(b) and thus it follows that there is no basis upon which the court could exercise a discretion to refuse to quash the determination of the Judge to take no action on the breach.

37 The question then arises as to what course should be taken by way of consequential orders. The Director seeks to have the breach proceedings remitted to the District Court. The applicant asks the Court to remit them to the Local Court on the basis that he will no longer consent to the jurisdiction of the District Court. The Director in the alternative asked the Court to exercise its power under s 23 of the Supreme Court Act and to deal with the question of whether the bonds should be revoked as a consequential order to its exercise of the power under s 69. That does not appear to me to be a practical course to take even if the Court had the power to exercise that jurisdiction. As a result of section 98(1C) of the Crimes (Sentencing Procedure) Act this Court is not a “court of superior jurisdiction” for the purposes of s 98(1)(c) with the result that this Court has no jurisdiction to deal with the breach under that Act even with the consent of the offender. But in any event, if this Court were to determine the breach proceedings, such a course would deprive the offender of any appeal against the order revoking the bond or any order made as a consequence of the revoking of the bond that might lie against orders made either in the District Court or the Local Court depending upon where the breach proceedings are heard and determined.

38 It seems to me that the appropriate course is to quash the determination of the Judge to take no action on the breach and to remit the matter to the District Court because it is the record of that court that has been brought into this Court by the summons and it is the orders of that court that are being quashed. If the offender purports to withdraw consent to the District Court’s further hearing the breach proceedings, it will be a matter for that court to determine where the breach proceedings will be heard.

39 The orders I propose are that:

1. The record of the District Court sitting in its criminal jurisdiction at Campbelltown in the proceedings before his Honour Acting Judge Mahoney QC on 28 September 2006 of Regina v Glen Cooke 06/21/3111 being proceedings for breach of five bonds entered pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on 5 September 2005 with the Liverpool Local Court be called up into this Court;

2. The determination by Mahoney ADCJ in those proceedings to take no action on the breach of the five bonds under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 is quashed;

3. The proceedings for the breach of the five bonds be remitted to the District Court for determination according to law.

40 PRICE JA: I agree with Howie JA.

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