Decision
Reasons for decision
For the above reasons there was no power in the Magistrates Court to take the respondents admission, or plea, to the alternative charge of recklessly causing serious harm. It follows then that the respondent did not appear in relation to that offence until 24 July 2014 when he first appeared on the information charging that offence.Conclusion I would refuse the Director’s application for permission to appeal. GRAY J: I agree with the order proposed by the Chief Justice. I do not wish to add to his reasons. STANLEY J: I agree that permission to appeal should be refused. I agree with the reasons of the Chief Justice.APPENDIXThe text in italics indicates the amendments made by the 2013 Act.The underlined text in italics amendments contained in the 2013 Act that were then reincorporated but in a different format and with a different section number into the 2014 Act. The text in bold and italics indicates amendments that were not previously included in the 2013 Act.Relevant aspects of s38 after the 2013 Act38—Suspension of imprisonment on entering into bond(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond - (a) to be of good behaviour; and(b) to comply with the other conditions (if any) of the bond.(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant. (2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than 3 months but less than one year, the sentencing court may, by order - (a) direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and(b) suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison. (2b)The court may not suspend a period of imprisonment under this section in any of the following cases:(a) the defendant is being sentenced as an adult for a serious and organised crime offence or specified offence against police; (b) the defendant is being sentenced as an adult for a designated offence and during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.(2ba)Despite subsection (2b), the court may, if satisfied that exceptional circumstances exist for doing so - (a) suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2b)(b), on condition that the defendant enter into a bond of a kind described in subsection (1); or(b) make an order under subsection (2a) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2b)(b), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year. (2c)If the court suspends a period of imprisonment under this section on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve time in any prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant the reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one to the following purposes:(a) renumerated employment(b) necessary medical or dental treatment for the defendant(c) averting or minimising a serious risk of death or injury(d) any other purpose approved or directed by the community corrections officer to whom the defendant is assigned. (and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period)(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished. (4)In this section - designated offence means any of the following offences under the Criminal Law Consolidation Act 1935:(a) an offence under section 12, 12A, 13 or 13A;…(f) an offence under section 23 or 24;Relevant aspects of s38 after the 2014 Act38—Suspension of imprisonment on defendant entering into bond(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond - (a) to be of good behaviour; and(b) to comply with the other conditions (if any) of the bond.(2)A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced - (a) to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or(b) as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or(c) as an adult for a serious and organised crime offence or specified offence against police; or(d) as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence. (2a)Despite subsection (2)(a), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year, the sentencing court may, by order - (a) direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison. (2b)Despite subsection (2)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order - (a) direct that the defendant serve a specified period of the imprisonment in prison (which, if a non-parole period has been fixed in respect of the defendant, must be a period that is one-fifth of the non-parole period fixed);and(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.(2ba)Despite subsection (2)(c) and (d), the court may, if satisfied that exceptional circumstances exist for doing so - (a) suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), on a condition that the defendant enter into a bond of a kind described in subsection (1); or(b) make an order under subsection (2a) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year.(2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:(a) renumerated employment(b) necessary medical or dental treatment for the defendant(c) averting or minimising a serious risk of death or injury(d) any other purpose approved or directed by the community corrections officer to whom the defendant is assigned. (and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period)(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished. (4)In this section - designated offence means any of the following offences under the Criminal Law Consolidation Act 1935:(a) an offence under section 12, 12A, 13 or 13A;…(f) an offence under section 23 or 24;prescribed designated offence means an offence under section 13 or 23 of the Criminal Law Consolidation Act 1935…