Regina v Cook
[2002] NSWCCA 113
•18 March 2002
CITATION: Regina v Cook [2002] NSWCCA 113 FILE NUMBER(S): CCA 60512/01 HEARING DATE(S): 18 March 2002 JUDGMENT DATE:
18 March 2002PARTIES :
Regina v Brian Frederick CookJUDGMENT OF: Dunford J at 1; Carruthers AJ at 2
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 99/51/0029 LOWER COURT JUDICIAL
OFFICER :His Honour Judge Price
COUNSEL : Crown - P.E. Barrett
Applicant - In personSOLICITORS: Crown - S.E. O'Connor
Applicant - In personCATCHWORDS: Sentencing appeal - breach of a s12 bond - no question of principle suitable to be determined by a two Judge Bench LEGISLATION CITED: Crimes Act 1900 s 59
Crimes (Sentencing Procedure) Act 1999 ss 12, 24(b), 98(3) and 99(1)(c)
Criminal Appeal Act 1912 s 6AA(2)CASES CITED: R v Edwards (1996) 90 A Crim R 510
R v Hansen (1961) 79 WN (NSW) 148DECISION: Leave to appeal granted. Appeal dismissed.
60512/01
Monday, 18 March 2002DUNFORD J
CARRUTHERS AJ
1 DUNFORD J: I agree. I would only add this. Whether in the case of a suspended sentence, the head sentence may be reduced if the bond entered into as a condition for the suspension of the sentence is adhered to for only part of the term of the bond must depend on a consideration of the interrelationship between ss 12, 24(b), 98(3) and 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999. In my view, this involves a question of general principle and is therefore not suitable to be determined by a bench of two judges: Criminal Appeal Act1912 s 6AA(2).
2 It has not been necessary to consider the matter further for disposition of this application, but in a suitable case it may be necessary for a bench of three judges to be constituted to determine the issue. The orders of the court will be as proposed by Carruthers AJ.
3 CARRUTHERS AJ: The applicant, Brian Frederick Cook, seeks leave to appeal against a sentence imposed upon him by his Honour Price DCJ at Armidale Court on 20 July 2001. The applicant came before his Honour on a breach of a s 12 bond: see s 98 of the Crimes (Sentencing Procedure) Act 1999. In respect of the breach of the bond, his Honour imposed, on 20 July 2001, a term of imprisonment for 18 months commencing on 20 July 2001 and expiring on 19 January 2003 and fixed a non-parole period of 10 months expiring on 19 May 2002.
4 The applicant is not legally represented but has made written submissions to this Court and is not personally present, at his wish. The offence for which the s 12 bond was given was one of assault occasioning actual bodily harm, committed on 30 October 1998. This offence, under s 59(1) of the Crimes Act1900, carries a maximum penalty of five years imprisonment.
5 When sentencing the applicant for the original offence on 2 May 2000, his Honour, Ducker DCJ said this:
- “Pursuant to s 12 of the Crimes (Sentencing Procedure) Act1999 , I sentence the offender to 18 months. I suspend that sentence upon him entering into a bond under s 9 of that Act. That bond will contain the following conditions",
and a number of conditions were set out, one, being the customary condition that he would be of good behaviour during the term of the bond. His Honour said:
- “I'm obliged to inform him of what will occur were he to breach the bond - he would be required to appear again before the Court and the Court would be in a position where it would have the power to require him to serve the balance of the suspended sentence, and to make certain other orders.”
6 The applicant was born on 27 December 1963. He does not have a satisfactory prior criminal record. The offence arose out of a drunken brawl in a hotel at Inverell. The applicant was clearly intoxicated at the time and although he inflicted injuries on his victim, he himself suffered some injuries. He was indeed fortunate, however, to obtain the benefit of the bond.
7 On 2 October 2000, the applicant committed the offences of malicious damage and use of offensive language, and on 5 October 2000 he breached an apprehended violence order. On 9 April 2001, the applicant was convicted at Inverell Local Court of the above three offences. In relation to the breach of the apprehended violence order and malicious damage charges, he was sentenced to nine months imprisonment. The sentences were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. He was also ordered to pay $403 in relation to the malicious damage charge.
8 In relation to the use offensive language charge, he was ordered to pay a fine of $150 and court costs. On 5 June 2001, Ducker DCJ directed that the applicant be called up for breach of the bond entered into on 2 May 2000. On 20 July 2001, Price DCJ imposed the sentence to which I have referred above and from which the applicant seeks leave to appeal. His Honour found that there were special circumstances to justify varying the non-parole period from the statutory ratio, being the applicant's need for supervision to assist him in overcoming his problems with intoxicating liquor.
9 This Court has had the benefit of helpful submissions by the Crown in relation to the various matters dealt with in the applicant's written submissions. The first ground of appeal is that the sentencing judge did not take into account a period of four months which the applicant served on the bond, during which period he had been of good behaviour. This ground has given rise to an interesting argument by Mr Barrett, of counsel for the Crown with regard to the operation of s 24(b)(ii) of the Crimes (Sentencing Procedure) Act.
10 The period during which the applicant complied with the terms of the bond was only slightly more than 25 per cent of the period to be served and, in the circumstances of this particular case, it is difficult to justify any conclusion that the period served under the bond by way of good behaviour justified any amelioration of the sentence which his Honour imposed, bearing in mind the relatively modest non-parole period. It is unnecessary in these circumstances for this Court to rule upon the interesting submission by Mr Barrett to the effect that there was no way by which his Honour could in law have reduced the length of the original suspended sentence. The non-parole period granted by his Honour was, in the circumstances, fairly to be categorised as generous indeed.
11 The second ground is that the altercation in the hotel occurred as a result of the applicant breaking up a disagreement between his friend and another man. Of course, balanced against this factor is the fact that the breach of the subject bond flowed from the commission of three further offences. These offences were demonstrative of a lack of respect for the responsibilities under which the applicant was placed by the conditions of the bond which must be taken to be a relevant factor: see Regina v Hansen (1961) 79 WN (NSW) 148.
12 A further ground is that as a result of the injuries which the applicant received during the altercation, an ambulance was called and he was taken to hospital. Again, it is difficult to see how the sentencing judge could reasonably have taken into account, that the applicant was injured whilst carrying out an unlawful act or by the necessary acts of others in defending themselves as factors which would entitle him to leniency.
13 Finally, the point is taken that the length of the sentence has caused hardship to the applicant's family. His Honour did refer to the fact that two pre-sentence reports referred to the fact that the applicant is married and has two children aged eight and nine respectively. His Honour took this into account and also noted that the applicant had recently purchased a home. As the Crown points out, it is an accepted fact that the imposition of a gaol term would often cause hardship to the family or dependants of an offender, however, the hardship to the family can only be taken into account in extreme or highly exceptional circumstances, indeed where it would be inhumane to refuse to do so: see Regina v Edwards (1996) 90 A Crim R 510. The circumstances under which the family of the applicant is living will no doubt cause some hardship to them, but it could not satisfy the demanding test of extreme or highly exceptional hardship required by the authorities.
14 There was also evidence that the applicant's wife was working from home, which would have some advantages to the members of the family. A letter was received by the Court on 13 March 2002 in which the applicant seeks to minimise the degree of criminality in the original offence and the three subsequent offences which constituted the breach of the bond. These are all matters which were clearly taken into consideration by the sentencing judge and they lack substance in the light of all the circumstances. Fortunately, Mr Cook's problems will be ameliorated by the fact that one could expect him to be discharged to parole on 19 May this year and it can only be hoped that he complies with the conditions of his parole so that there is not a repetition of the unfortunate circumstances which gave rise to this application. In the circumstances, I would grant leave to appeal but dismiss the appeal.
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