Author: Dennis MiralisCriminal Defence Lawyer Dennis Miralis at our Sydney Office

Under the Crimes (Sentencing Procedure) Act 1999 (“the Act”), a sentence of imprisonment can be imposed where the circumstances of an offence are such as to leave no alternative. Section 5 of the Act specifies that a court must not sentence an offender to imprisonment unless it is satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. In considering alternatives to full time custody, the court will look at a variety of options. These will include a community service order under section 8 of the Act, or a good behaviour bond under section 9.

Where the sentencing judge has decided that a period of imprisonment is an appropriate sentence, the methodology to be employed by the Judge in imposing that penalty was outlined by Howie J in the New South Wales Court of Criminal Appeal in R v Zamagias [2002] NSWCCA 17 (with Hodgson and Levine JJ agreeing). Three stages are outlined; firstly, the preliminary question of whether there are any alternatives to the imposition of a term of imprisonment. [25] The sentencing judge will, at this stage, consider whether any non-custodial alternatives are appropriate, having regard to the objective seriousness of the offence, and the principles of sentencing outlined in section 3A of the Act.

Where no alternatives are appropriate, the sentencing judge will consider the second question; that is, what will the term of that period of imprisonment be. [26] This is an independent factor, to be considered in isolation from the question of how the sentence is to be served.

The final question in the sentencing process is the consideration of the manner in which that sentence is to be served. There are 3 alternative options to full time custody which the judge may consider at this stage. The first is whether the sentence should be served by way of a suspended sentence, under section 12 of the Act; secondly, the option of home detention under section 7; or finally, periodic detention under section 6. In Zamagias, Howie J notes that;

The appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The Court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment.

These 3 steps must be considered by the judge when deciding to impose a period of imprisonment. In effect, the option under section 12 of suspending the duration of a period of imprisonment is the least onerous form of sanction which a person in receipt of a sentence of imprisonment can hope to receive. Under section 12 of the Act the court can suspend the execution of the sentence by placing the offender on a good behaviour bond for a period of time not exceeding the term of the sentence.

Breach of the Section 12 Good Behaviour Bond

The process that occurs when a person breaches the terms of their suspended sentence under section 12 is outlined under section 98(3) of the Act. The language of section 98(3) is unequivocal; the court must revoke the good behaviour bond unless it is satisfied with one of two criteria; firstly, that the breach is trivial in nature; or secondly, that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond.

The questions posed by Section 98(3) were addressed by the New South Wales Court of Appeal in Director of Public Prosecutions v Cooke and Anor [2007] NSWCA 2, also a decision of Howie J, with Sully and Price JJ.

In Cooke, it is outlined that the two questions posed by section 98(3) are sequential, with the first question directed to triviality, and the second to whether it is reasonable to excuse the failure to comply. Therefore, it is only in circumstances where the breach is not trivial, that the question of whether it is reasonable to excuse the failure to comply will arise. [14]

Howie J makes it clear that when considering whether it is reasonable to excuse the offender’s failure to comply, the focus must principally be on the behaviour giving rise to the failure to comply with the conditions of the bond, and whether that behaviour should be excused. [14] Howie J asserts at paragraph [16] of the judgment that;

Clearly if there are extenuating circumstances of sufficient importance to explain the behaviour giving rise to the breach, the court can exercise its jurisdiction to take no action on the breach. So, for example, if the breach is the failure to report to a probation officer there might be good reasons to excuse that failure if the offender had some acute personal problem at the time such as illness or a death in the family. If the breach is a further offence, the failure to be of good behaviour might be excused because of extenuating circumstances leading to the offending behaviour. An example might be driving under the influence of alcohol in an emergency situation. In such a case the court is considering whether the conduct represents a contumelious act of defiance or disregard of the conditions of the bond entered into with the court.

It was made clear in Cooke that the jurisdiction of the court to consider the subjective circumstances of an offender in relation to the circumstances of the breach, are narrow. For example, it was held that the consequences of the revocation of the bond would rarely be taken into account. [20]

Howie J asserts that two primary factors are to be borne in mind in considering a breach of a section 12 bond; firstly, that generally a breach of the conditions of the bond will result in the offender serving the sentence that was suspended; and secondly, that the principal consideration, if not the only consideration, is upon the conduct giving rise to the breach. [21]

Underlying Policy

The tough approach to breach action is derived from the underlying policy of the system of suspended sentence, as Howie J asserts;

There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved. [23]

The options open to the sentencing judge in dealing with a breach of a section 12 bond are thus confined, reflecting the seriousness in which courts approach a breach of the mercy afforded to an offender under section 12. As Hidden J notes in DPP v Burrow & Anor [2004] NSWSC 433;

The subsection mandates the revocation of a s.12 bond in the event of a breach unless the court finds one or other of the exceptions expressed in it. Clearly, the legislature intended that a court should have much less room to move with a s.12 bond than it has by s.98(2) with a s.9 bond. Unless a significant breach of a s.12 bond normally leads to its revocation, the suspended sentence would be deprived of its salutary quality and of its viability as a sentencing option for serious offences. [23]

In short, Howie J in Cooke states that;

The suspension of the sentence of imprisonment was an act of mercy designed to assist the offender’s rehabilitation or for some other purpose to benefit the offender on the understanding that if the offender did not fulfil the conditions of the bond, the sentence would be imposed. Therefore, generally speaking, there can be no unfairness in requiring the offender to serve the sentence when the obligations under the bond have been breached. [24]

Suspended sentences therefore are designed as a way of allowing an offender to turn a corner and desist from further offending, with the ‘Sword of Damocles’ hanging over his or her head whilst this process is undertaken. However, the avoidance of imprisonment, and the fact that the conditions of the good behaviour bond may, ultimately, be far from onerous, create the risk that without a rigorous approach by the courts in the cases of breach, the entire regime will amount to nothing more than a toothless tiger. The strength of the suspended sentence as a viable sentencing option for serious offences relies primarily on the consequences of the breach, namely, the imposition of the sentence that was initially imposed.

Procedure

In Cooke, Howie J outlines an important procedural consideration in matters involving the breach of a section 12 bond: namely that once the breach has been established, the immediate issue is re-sentencing for the original offence. [28] Only once that first issue is addressed, and a sentence imposed, will the sentencing judge consider what to do with the breach offence, and impose a sentence for that offence.

The practical importance of this is that once the bond has been revoked, the offender will ordinarily be sentenced to a custodial term. This removes the court’s jurisdiction to impose another suspended sentence for the breach offence, as an offender is ineligible to receive the benefit of section 12 if they are already serving a term of imprisonment (section 12(2) of the Act).

Once the bond is revoked, section 99(1)(c) of the Act operates, in that the order suspending the original sentence ceases to have effect; Part 4 of the Act, which governs sentencing procedures for imprisonment applies, as does section 24, which applies in relation to the setting of non-parole periods. The options of home detention or periodic detention may still be considered by the sentencing judge, although either a Pre-Sentence Report, or an Options Report will be required in making such an order (sections 66(2) and 78(2) respectively).

In the event that full time imprisonment is ordered, that sentence commences on the date of revocation of the bond. (See R v Graham [2004] NSWCCA 420)

Scope for Submissions

An outstanding feature of the judgment in Cooke is that the subjective circumstances of the offender have very little relevance in resolving the issues posed by section 98(3). However, a limited scope for these factors to be considered was endorsed by Howie J as follows;

Hidden J in Burrows held that the subjective circumstances of the offender are generally irrelevant in determining whether there are good reasons to excuse the breach under Section 98(3)(b) except to the extent that those subjective circumstances are relevant to a consideration of the breach itself. So, for example, the fact that the offender suffers from a mental disorder that may account for the failure to comply with the conditions of the bond will be a relevant factor in determining whether to excuse the breach: see Marston. But subjective features of the offender at the time of the breach proceedings are irrelevant to the decision whether good reasons exist to excuse the breach. They may of course have some role to play in what order is made after revocation when determining whether the consequential sentence is to be served by way of full time custody, or an available alternative and the length of the non-parole period to be imposed. But they cannot affect the decision whether to revoke the bond.

The practical effect of this assertion is that where a mental illness may explain the action leading to the failure to comply with the terms of the good behaviour bond, that factor is a relevant consideration in determining whether to excuse the breach. Therefore, in practice, evidence of this mental condition and proof of a nexus between that evidence and the breaching behaviour must be presented.

Howie J further asserts that the Purposes of Sentencing as outlined in Section 3A of the Act have no application in determining whether or not to excuse a failure to comply with the conditions of the good behaviour bond. [30] Without expressing contempt for the authority of the New South Wales Court of Criminal Appeal, this principle could be refuted. The language of section 98(3) is characterized by the ambiguous terms ‘trivial’ and ‘reasonable’. The common law provides little guidance in relation to section 98(3) as to what the test with regard to these terms might be.

Section 33 of the Interpretation Act 1987 outlines that where interpreting a provision of an act, a construction which promotes the purpose or object underlying the act should be preferred to an interpretation which would not. An example of where such an approach may be useful is where a person is serving a suspended sentence, with Probation and Parole Supervision for an alcohol addiction, and where, despite making good progress, he or she commits a minor offence. In making a submission that it would be reasonable to excuse the breach, an interpretation of ‘reasonable’ in this context could be advanced by emphasis on the purpose of rehabilitation outlined under section 3A (at the expense of the purposes of deterrence and protection of the community, which carry less weight in relation to minor offences).

The absence of the incremental sentences of home detention and periodic detention in regional areas may also provide scope for a submission not to revoke the bond. Home detention is only available in Sydney, and the Central Coast/Hunter and Illawarra regions. The only periodic detention facilities in regional NSW are at Bathurst, Tamworth and Tumbarumba (near Albury). Generally, offenders who live far from these venues will be deemed ineligible for periodic detention, paradoxically, because of the inconvenience of having to travel to undertake periodic detention.

In R v Michelin [2008] NSWDC 204, Cogswell DCJ held that because the offender lived in a remote location, the impact of the revocation of the section 12 bond could not be ameliorated by any alternative to full time custody. As the offender in this case had strong subjective features, Cogswell DCJ took this into account in deciding to take no action on the breach.

The absence of home detention and periodic detention in regional NSW may, therefore, provide for the argument that no action should be taken on the breach of a section 12 bond. However, firstly, this submission should be supported by strong subjective evidence in support of the offender, and should be approached cautiously where the breach offence is serious, or of a similar nature to the original offence. Furthermore, an authority of the District Court is not a binding judgment on the Local Court, as the District Court is not a superior court of record. This is a persuasive precedent only.

An advancement on this principle may be made, for example, where an offender is ineligible for periodic detention, on the basis that he or she has previously served a period of imprisonment of more than 6 months, by way of full time detention, per section 65A of the Act. In a case where this prior sentence was served well in the past, and where the offender has strong subjective circumstances, such a submission could be considered. This would, however, leave the hurdle of the outstanding suspended sentence, and the circumstances of the breach to resolve. Finally, note that under section 24(b) of the Act the court must take into account the amount of time served on the good behaviour bond, and anything done to comply with its conditions. These factors, where favourable, should always be considered in submissions, and could, in a case where a full time sentence will be imposed, influence a finding of special circumstances under section 44(2) of the Act, so as to reduce the subsequent non-parole period.

Conclusion

A client who is given the benefit of section 12, should have it made abundantly clear that if they breach the terms of the bond, either through committing a further offence, or, for example, by failing to comply with the directions of Probation and Parole, they will, in all likelihood, receive a custodial sentence. In most cases a suspended sentence is an act of mercy, or an opportunity to take positive steps to avoid re-offending. As Howie J states in Zamagias;

The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate. [32]

A sentencing judge is likely to view the waste of this opportunity as a contempt for the mercy of the court, and notwithstanding the terms of section 47(1) of the Act, the principle of totality is often invoked to make the original and the breach offences accumulative. In short, the danger that an offender should view the suspended sentence as a way of getting off lightly should be strongly avoided, as the scope to take remedial action after a breach is narrow.