R v James Mervyn Hillhouse - [2009] NSWDC 427

CITATION: R v James Mervyn HILLHOUSE [2009] NSWDC 427

JUDGMENT DATE:
3 December 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: In regards to the appeals from the revocation of bonds I set aside the sentences of the learned magistrate. In regards to the appeals against sentence I set aside the sentences of the learned magistrate.

CATCHWORDS: CRIMINAL LAW - judgment - sentence appeal - appeal against revocation of s 12 bonds - submission that the offender had good reasons for failing to comply with the conditions of the bonds - whether necessity or urgency required - stupid behaviour not contumelious disregard of bond - relevance of 5A authorities

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 98(3)

CASES CITED: Director of Public Prosecutions v Burrow [2004] NSWSC 433
Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379
R v Marston (1993) 60 SASR 320

PARTIES: Regina
James Mervyn Hillhous

FILE NUMBER(S): 2009/202163; 2009/210803

SOLICITORS: Ms White for the ODPP
Ms Miles for the offender

JUDGMENT

1. These appeals against sentences by James Hillhouse include appeals against the revocation of bonds. Magistrate Dunlevy sitting in the Broken Hill Local Court on 22 September 2009 revoked good behaviour bonds which had been imposed upon James Hillhouse in the past. They were not good behaviour bonds imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999 but imposed under s 12. This means that the bonds were accompanied by sentences of imprisonment.

2. The issue raised by Ms Miles who appears for Mr Hillhouse is whether under s 98(3) of the Crimes (Sentencing Procedure) Act I should find that there are good reasons for excusing her client’s failure to comply with the conditions of the good behaviour bonds which accompanied the suspended sentences.

3. Mr Hillhouse had received a suspended sentence on 17 February 2009 of seven months at the Broken Hill Local Court for driving whilst disqualified. He had committed that offence on 30 September 2008. A week or so later in the same court he received three more suspended sentences accompanied by good behaviour bonds. They were imposed on 24 February 2009 for three offences which were all committed earlier that month, on 8 February 2009. There are two offences of reckless damage to property and an offence of an assault. The learned magistrate imposed a seven month suspended sentence for each of the two offences of reckless damage to property and a nine month suspended sentence of imprisonment for the assault.

4. I should have said earlier that when he first appeared, when he got his first bond on 17 February 2009 that accompanied a seven month sentence of imprisonment which was suspended.

5. Mr Hillhouse found himself back in the Broken Hill Local Court on 22 September 2009. All of the good behaviour bonds that I have referred to were revoked by Magistrate Dunlevy which meant that the prison sentences were activated.

6. It is from the decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v James Mervyn Hillhouse

Details

AGLC: R v James Mervyn Hillhouse [2009] NSWDC 427
Case: [2009] NSWDC 427
Decision Date: 3 December 2009

CaseChat Overview and Summary

In the case of R v James Mervyn Hillhouse, the defendant appealed against the revocation of his section 12 bonds and his sentence. The defendant had been convicted of multiple criminal offences and was subject to bail conditions that required him to comply with certain restrictions. The dispute arose from the revocation of these conditions by the Magistrates Court due to the defendant's alleged non-compliance. The matter was brought before the court for review of the revocation and the appropriateness of the sentence imposed.

The primary legal issues that the court was required to decide involved whether the defendant had valid reasons for not complying with the conditions of the bonds and if his actions constituted a contumelious disregard of the bonds. Additionally, the court had to consider the relevance of the authorities concerning section 5A in the context of the defendant's situation. The court also needed to assess whether the defendant's behaviour, although deemed stupid, amounted to a disregard of the bond conditions warranting revocation.

The court found that the defendant had presented good reasons for his failure to comply with the bond conditions, which included personal and medical issues. The court held that the defendant's actions were not a contumelious disregard of the bond but rather a result of his circumstances. The court emphasised that mere stupid behaviour did not equate to a disregard of the bond conditions. Consequently, the court set aside the sentences of the learned magistrate regarding both the revocation of the bonds and the sentence imposed.

Orders

Orders of the court

In regards to the appeals from the revocation of bonds I set aside the sentences of the learned magistrate. In regards to the appeals against sentence I set aside the sentences of the learned magistrate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v James Mervyn HILLHOUSE [2009] NSWDC 427
JUDGMENT DATE:	3 December 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	In regards to the appeals from the revocation of bonds I set aside the sentences of the learned magistrate. In regards to the appeals against sentence I set aside the sentences of the learned magistrate.
CATCHWORDS:	CRIMINAL LAW - judgment - sentence appeal - appeal against revocation of s 12 bonds - submission that the offender had good reasons for failing to comply with the conditions of the bonds - whether necessity or urgency required - stupid behaviour not contumelious disregard of bond - relevance of 5A authorities
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 98(3)
CASES CITED:	Director of Public Prosecutions v Burrow [2004] NSWSC 433 Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379 R v Marston (1993) 60 SASR 320
PARTIES:	Regina James Mervyn Hillhous
FILE NUMBER(S):	2009/202163; 2009/210803
SOLICITORS:	Ms White for the ODPP Ms Miles for the offender