R v Mark Younis

[2011] NSWDC 229

District Court

New South Wales

Medium Neutral Citation:	R v Mark YOUNIS [2011] NSWDC 229
Decision date:	20 December 2011
Before:	Cogswell SC DCJ
Decision:	Proceedings for resolution of question of non-compliance with a good behaviour bond adjourned.
Catchwords:	CRIMINAL LAW - Procedure - adjournment - granted on grounds two jurisdictions involved - potential for inconsistent determinations.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, s 12 Director of Public Prosecutions Act 1986
Cases Cited:	R v Nicholson [2010] NSWCCA 80
Category:	Principal judgment
Parties:	Regina (Crown) Mark YOUNIS (Accused)
Representation:	Solicitors: Director of Public Prosecutions (Crown) AYS Legals (Accused)
File Number(s):	DC 2007/12428

Judgment

1. Ms B Butt, solicitor, who appears for the Director of Public Prosecutions, asserts that there has been a failure to comply with the conditions of a good behaviour bond which I imposed on Mark Younis.

1. Mr A Sandroussi, solicitor, who appears for Mr Younis, argues that there has not yet been any failure to comply. He says the reason is that the conduct said to amount to a breach has resulted in a charge or charges against his client. To those charges his client is pleading not guilty and the case has not yet been determined by the Local Court. He therefore says that it is not appropriate for me yet to determine Ms Butt's application for me to act on an alleged breach.

1. A little more needs to be said about the background. I sentenced Mr Younis originally in 2008. I imposed a sentence of imprisonment but suspended it under s 12 of the Crimes (Sentencing Procedure) Act 1999 and imposed a good behaviour bond as well. The law provides that if an offender breaches that good behaviour bond then it is very difficult not to be sent to gaol once the failure to comply is proved.

1. In January this year I received notification that Mr Younis had failed to comply with the good behaviour bond which I had imposed. The allegation was that he had committed certain offences in 2009. I directed that Mr Younis be brought before me for determining whether or not he had failed to comply with the good behaviour bond.

1. The matter has been before me throughout this year on about half a dozen different times. The problem was caused by Mr Younis originally pleading guilty to the conduct which resulted in the claim that he had failed to comply with his bond. He pleaded guilty when he was charged with the offences in the Local Court but then he applied to the Local Court to reverse his pleas of guilty to not guilty. There followed a series of administrative errors, misunderstandings and oversights.

1. The result is that the charges against Mr Younis arising from his alleged conduct in 2009 have not yet been determined. Ms Butt urges me to proceed in any event. She adopted my observation that s 98 of the Crimes (Sentencing Procedure) Act - which deals with breaches of good behaviour bonds - provides that I may act if I am "satisfied that an offender appearing...has failed to comply with any of the conditions of a good behaviour bond". Ms Butt adopts my suggestion that I can determine that myself, perhaps to a standard of beyond reasonable doubt (that has not been determined), and take one of the actions provided for in s 98 (2).

1. Mr Sandroussi on the other hand argues that that could result in an injustice to his client. He points out that the Local Court documents now clearly show that the plea to the 2009 conduct is not guilty. The case is coming back in January for a Local Court magistrate to look at it and to finally decide whether the plea that Mr Younis entered is guilty or not guilty. If the court accepts that the plea is not guilty then it will proceed to fix a hearing date. If the court accepts that the plea is guilty then Mr Younis will be sentenced straightaway and the breach can come back before me. (I might add that it would seem in light of authority provided to me by Ms Butt, namely R v Nicholson [2010] NSWCCA 80, that the more desirable course if the plea is accepted as guilty would be for the Local Court to postpone sentence until I determine the breach and then to sentence Mr Younis.)

1. Mr Sandroussi's arguments are these. First, he argues that the process of reporting the breach to me evidently depended upon the plea which was entered in the Local Court rather than the conduct itself. As I said, the conduct occurred in 2009. It is apparent that Mr Younis made a number of appearances in the Local Court over the following year and did not enter a plea of guilty until about October 2010. The day after he entered that plea of guilty a breach notice issued concerning my good behaviour bond. Mr Sandroussi's point is that the record now shows a plea of not guilty so that it would be appropriate in the exercise of my discretion not to determine the breach because the trigger which prompted the issue of the breach notice resulting in my direction no longer appears on the face of the record. Indeed the opposite appears.

1. Secondly, Mr Sandroussi argues that if I proceeded to determine the failure to comply and determine that there had been a failure to comply, the Local Court is still left to determine its case. There could be two inconsistent determinations potentially. It could be that I am satisfied that there was a failure to comply. It could be that an independent judicial officer in another court is not satisfied beyond reasonable doubt that Mr Younis is guilty of the offences that he was charged with arising from the 2009 conduct. Mr Sandroussi points out that the consequence of my determination could be that his client goes to gaol today whereas when that conduct has been determined by a judicial officer considering an offence his client would be acquitted. Such a state of affairs would be undesirable so far as the criminal justice system is concerned.

1. Mr Sandroussi's third argument is that there remains unexplored by him or Ms Butt or by me the question of whether there might be an estoppel which would arise from any determination made by me today.

1. Finally, although Mr Sandroussi did not raise it today, there has been tendered before me on previous occasions evidence that his client suffers from mental health problems. That should concern me in deciding whether to proceed with the breach proceedings today.

1. It is obviously desirable that alleged breaches of good behaviour bonds, especially those associated with an order made under s 12 of the Crimes (Sentencing Procedure) Act, should be determined swiftly. The offender and the community should not be left in suspension on the question of whether or not a breach has occurred and the consequence. If it has occurred then the offender has not complied with the good behaviour bond and the suspension should be revoked and the offender should be in gaol. The offender after all received a custodial sentence. It is not appropriate for that process to be postponed indefinitely.

1. The proceedings in this case have reached a most unsatisfactory stage. One of the problems is that there are two jurisdictions involved. I am sitting in the District Court determining, or invited to determine, the question of whether there has been a breach of an order imposed by me. There are separate proceedings in the Local Court which are relevant to and may impact on the question I have to determine. Needless to say I cannot control what happens in the Local Court. But Mr Sandroussi urges me to abide the Local Court process until the issue is determined one way or the other.

1. Although it is very unsatisfactory, I propose to allow the adjournment. Mr Sandroussi has helpfully put on the record that the Local Court Magistrate who dealt with the charges recently was fully aware of the history of the matter and expressed the view that it was unsatisfactory and needed to be resolved. I take encouragement from that. Secondly, Mr Sandroussi indicated that he would not stand in the way of an early hearing date being allocated for determination by the Local Court of the offences charged resulting from the 2009 conduct.

1. I have suggested to Ms Butt that her Office might give consideration to taking over the Local Court proceedings under the Director of Public Prosecutions Act 1986. This would mean that the same prosecutor is appearing in both courts and can be apprised of the difficulties arising because of the connection between the two cases. That prosecutor can make sure that those difficulties from its point of view are drawn to the Local Court's attention and urge that court to give the matter expedition. Whether or not that occurs is of course a matter entirely for her Office and the Director of Public Prosecutions. There are factors which he has to take into account apart from any that I have referred to.

1. Ms Butt helpfully suggested that if that did not occur then she would liaise with the Police Prosecution office at the Local Court where this is being heard and draw the attention of the prosecutor to what was going on.

1. For the reasons that I have indicated I propose to adjourn, on Mr Sandroussi's application, the proceedings brought by the Director of Public Prosecutions for resolution of the question of non-compliance with a good behaviour bond.

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Decision last updated: 30 April 2012