Green, Brett John v The Queen

[2008] NSWDC 378

CITATION:	GREEN, Brett John v R [2008] NSWDC 378
JUDGMENT DATE:	28 November 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I set aside the sentence of the magistrate. I decide to take no action in respect of the failure to comply with the s 12 bond.
CATCHWORDS:	CRIMINAL LAW - breach of s 12 bond - original offence of driving whilst disqualified - s 12 bond imposed on original offence - breach offence of intentionally or recklessly destroying or damaging property - breach offence domestic violence related - plea of guilty entered to breach offence - was the failure to comply with the conditions of the bond trivial in nature - prior criminal record including convictions for assault and stalking or intimidating - reasons for fresh charge not relevant - facts of non-compliance not relevant
LEGISLATION CITED:	Crimes Act 1900 s 195(1)(a) Crimes (Appeal and Review) Act 2001 s 20(2) Crimes (Sentencing Procedure) Act 1999 s 9, s 12, s 98(3)(a)
PARTIES:	Brett John Green Regina
FILE NUMBER(S):	2008/16691
SOLICITORS:	Mr Davidge for Mr Green Ms Nicholson for the Director of Public Prosecutions

JUDGMENT

1. This is a difficult appeal to decide. It is an appeal about a man who breached a bond. Unless I find that the breach was trivial he needs to stay in gaol. The breach occurred in the context of his relationship with his partner. It involved a broken window.

2. As both Ms Nicholson, who appears for the respondent Director of Public Prosecutions and Mr Davidge, who appears for the appellant Brett John Green agree, any offence involving domestic violence cannot be treated as trivial. Indeed it is common knowledge that there has been a good deal of publicity this week in one of the major metropolitan Sydney newspapers about the problems of domestic violence and the consequences, sometimes tragic for the victims of domestic violence.

3. Briefly what happened is this. Brent Green is twenty-five, he is about to turn twenty-six. On 19 December 2006 when he was still twenty-three he committed an offence of driving whilst disqualified. The following year on 15 August 2007 he was sentenced by a magistrate to perform a hundred hours of community service and disqualified from driving for two years. He completed only twenty-eight hours of that community service and was taken back to court. On 25 August 2008, a Local Court magistrate revoked his community service order and sentenced him to three months imprisonment; however the magistrate suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.
4. However, just over a month later the incident occurred which is said to involve a breach of the bond. I will come back in a moment to describe that incident which occurred on 28 September 2008. As a result of what happened on 28 September 2008 Mr Green was charged with an offence. The offence he was charged with was intentionally or recklessly destroying or damaging property. That is an offence under s195(1)(a) of the Crimes Act 1900. There is no component of that offence in the Crimes Act which refers to an element of the offence being domestic violence, but administratively it is noted on the papers that the offence was domestic violence related.

5. When he came to court on 15 October 2008 he pleaded guilty to that offence. The magistrate’s view of the seriousness of that offence was reflected by the fact that the magistrate sentenced him by imposing a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for twelve months.

6. Amongst the conditions of the bond was that he not assault molest or harass or otherwise interfere with Naomi Brill. Naomi Brill is described in the papers, which are exhibit A before me, as his partner, although they do not live together. They have a daughter. Ms Nicholson points out that it is likely that that condition was one which was imposed as a result of law because of the circumstance that the offence was in the context of a domestic relationship.

7. However, the other thing that happened in court on 15 October 2008 was that the magistrate revoked the bond which had been imposed the previous month under s 12 of the Crimes (Sentencing Procedure) Act. The result of that is that the sentence previously suspended comes to be executed. Hence Mr Phillips went into custody on 15 October 2008 for the three months of the sentence which was imposed on 25 August 2008. That sentence is to expire on 14 January 2009. A few days later, on 20 October 2008, he lodged a notice of appeal and that is how the matter comes before me.

8. The law is strict about bonds imposed under s 12 of the Crimes (Sentencing Procedure) Act. S 98(3) provides that a court must revoke the bond unless it is satisfied either that the failure to comply was trivial in nature or that there are good reasons for excusing the failure to comply with the conditions of the bond.

9. This brings me to the events that happened on 28 September 2008. The only source of evidence of that is a document which is part of exhibit A and attached to the charge documents relating to the s 195 charge. The document is called “FULL FACTS”. The document recites that Mr Green and Ms Brill had been in a domestic relationship for eight years and have one child as a result of the relationship. It records that at about 4pm on Sunday 28 September 2008 Mr Green returned home to the victim’s house at the particular address. It records that he had been out overnight drinking with some friends and that when he got to the house he noticed his clothes packed into two small bags on the front porch. He knocked at the door, but Ms Brill refused to let him in. They began to argue and Mr Green started banging on the front window.

10. The document then records that the “actions of the accused has caused the victim to call police.” It goes on to point out that the police arrived a short time later and saw that the front window was smashed. They saw that Mr Phillips had a small cut that was bleeding to his right hand. Mr Green was upset, he was saying “I did it, but I will pay for it”. He was cautioned and again said “I smashed it, but I will pay for it”.

11. Police spoke to Ms Brill. She did not wish to make a statement to the police. Mr Green was again cautioned. He was arrested and taken to the police station and was charged.

12. Mr Davidge wisely acknowledges that there does not appear to be amongst those facts anything which would amount to a good reason to excuse his client’s failure to comply with the condition of the bond to be of good behaviour. The only possible explanation is that he had been drinking, although the facts do not include that he was drunk at the time. Drinking would not amount to a good reason for excusing the failure to comply. I do not find that there was any good reason to excuse the Mr Green’s failure to comply with the bond.

13. However Mr Davidge’s alternative submission is based on s 98(3)(a) which provides that the court may decline to revoke a bond if it is satisfied “that the offender’s failure to comply with the conditions of the bond was trivial in nature”.

14. As Mr Davidge says, the description of the window being broken is relatively neutral in the facts. All that we know is that when the police arrived the window was smashed and Mr Green acknowledged that he was responsible. We know nothing more about the force of the impact caused to smash the window or the degree to which it was smashed. Mr Davidge acknowledges that Ms Brill called the police but argues that the facts do not include that she was scared or afraid. I think it likely that she was scared or afraid which prompted her call to the police. He points out that it is apparent from the facts that it was his client who was upset and indeed the facts say just that.

15. The section itself focuses my attention on the failure to comply with the conditions of the bond and poses the question whether that failure was trivial in nature or not. I had thought that because that non-compliance amounted to an offence which resulted in an order that he not intimidate or harass Ms Brill, that would aggravate the circumstances of the offence. However, I have changed my mind. It seems to me that the Act requires me to focus on the facts of the non-compliance rather than on decisions made by other people as a consequence of those facts.The people I have in mind are the police and the magistrate. As a result of the facts, the police decided to charge Mr Green. I am not privy to the factors which they may have taken into account in deciding to charge him for what amounted to breaking a window. Nor am I aware - because I do not have the remarks on sentence - of the factors which the magistrate took into account in imposing as a condition of the bond that he not harass Ms Brill.

16. It seems to me that the correct approach is to focus on the facts which amount to the alleged non-compliance with the conditions of the bond. In this case the facts are that a man returned home to his partner’s house, as is described in the facts, after being out all night, to find his belongings in a bags outside. Understandably that resulted in some friction between the man and his partner.

17. That friction involved verbal arguments. So far there is nothing unusual or exceptional which would amount to a failure to comply with a good behaviour bond. The facts then record that the man started banging on the front window. We know that the window was smashed and Mr Green accepted responsibility for smashing it. We also know that the banging on the front window prompted Ms Brill to call the police. However, she did not wish to make a statement to the police about the incident. Any inference about the seriousness of the banging on the window which prompted Ms Brill to call the police must be tempered by the fact that once the police arrived she decided not to take the matter any further.

18. I should say in this context that Mr Green has on his record a number of convictions for assault and one offence of stalking or intimidating. It is acknowledged that there is no evidence of who the victim or victims were of those offences. The law is clear that in order to determine that the victim in those cases was his partner I would have to be satisfied of that fact beyond reasonable doubt. Clearly I cannot be satisfied of that on the evidence which I have available.

19. Judicial officers have to be very careful about concluding that any offence which occurs in a domestic relationship could be regarded as trivial. I acknowledge the force of that proposition, which was the subject of submissions by both parties. But judicial officers are also limited to acting on the evidence. I cannot reach conclusions which are adverse to an offender without being satisfied of those conclusions in a sentence proceeding beyond reasonable doubt.

20. Hence in this case, with the bare facts which I have, I am confronted with a situation where there is an unremarkable verbal argument between a couple, one of whom has stayed out overnight, resulting in a broken window, which was brought about in a manner that we know nothing about. With that evidence before me, I am of the view that the failure to comply with the conditions of the s 12 bond was trivial in nature.

21. I therefore determine this appeal against sentence as follows. Under s 20(2) of the Crimes (Appeal and Review) Act 2001, I determine this appeal against sentence by setting aside the sentence of the magistrate. Instead of that sentence and--

NICHOLSON: Your Honour perhaps - sorry to interrupt, but I think it is the setting aside of the revocation of the sentence--

HIS HONOUR: Yes, I am just about to--
NICHOLSON: --other than the sentence, because the bond - if your Honour
re-sentences him today - the bond will begin again.
HIS HONOUR: I don’t think I do that. All I am doing now is making an order under section 98, now aren’t I? Rather than revoke the bond, take no action?

DAVIDGE: Your Honour please.

HIS HONOUR: But I am not sure of the nature of the appeal. It’s an appeal--

NICHOLSON: It’s an appeal against the revocation, so the appeal should be allowed and revocation set aside.

HIS HONOUR: But the appeal is brought under the Crimes (Appeal and Review) Act isn’t it?

NICHOLSON: Yes.

HIS HONOUR: So my powers are - it must be an appeal in the nature of appeal against sentence mustn’t it?

NICHOLSON: Yes, yes your Honour.

HIS HONOUR: Yeah, because my powers are - yep, sentence is defined as including any order suspending the execution of imprisonment.

NICHOLSON: That would be the appeal against the section 12.

HIS HONOUR: Yes you’re right, you’re right, you’re right.

NICHOLSON: In fact I think the--

HIS HONOUR: So how does it get to me?

NICHOLSON: I think your Honour that’s there’s provision to appeal the revocation--

HIS HONOUR: Well it is a sentence of imprisonment, isn’t it? He got a sentence of imprisonment?

NICHOLSON: Well he did your Honour, but that’s not what he is appealing. He’s appealing the revocation of the bond and I believe somewhere around section 98 there is now provision to ..(not transcribable).. I think, and your Honour I am going off the top of my head here, but there was some amendments in late 2006 that revocation was--

HIS HONOUR: No here we are, section - sentence includes--

NICHOLSON: --includes the revocation, your Honour.

HIS HONOUR: --any order made by Local Court revoking a good behaviour bond.

NICHOLSON: Yes.

HIS HONOUR: And any order made as a consequence of the revocation of the good behaviour bond, so it’s--

NICHOLSON: Which would be the execution--

HIS HONOUR: Yes, exactly.

NICHOLSON: --yes.

HIS HONOUR: So it is an appeal against sentence because sentence is so defined?

NICHOLSON: The revocation?

HIS HONOUR: Yes.

22. I determine this appeal against sentence by setting aside the sentence, as defined in s 3, of the magistrate. I am satisfied that Mr Green has failed to comply with the condition of the good behaviour bond but I decide to take no action in respect of the failure to comply. I make that decision under s 98(2) because I am satisfied under subs s98(3)(a), for the reasons that I have already given, that his failure to comply was trivial in nature.

Any other orders I need to make?
NICHOLSON: No, your Honour.
DAVIDGE: No thank you your Honour.
HIS HONOUR: So is there any reason why he should be held?

NICHOLSON: No, not that I am aware of.

HIS HONOUR: No. No there is no reason why he should be held in custody?

NICHOLSON: Not that I am aware of, no.

HIS HONOUR: So you are discharged, you can come out of the dock. Now you have probably got to be processed I imagine by the Corrective Services, but you will be released today. All right you have won your appeal.

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