Suspended sentences

[5-700] Repeal of s 12 Crimes (Sentencing Procedure) Act 1999

The power to impose a suspended sentence and direct an offender to enter into a s 12 bond was repealed with effect from 24 September 2018: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, Sch 1[14] (“the amending Act”).

As a result of the operation of the transitional provisions, existing s 12 bonds cease to have effect at the end of 3 years from 24 September 2018 (unless the relevant s 12 bond expired or has otherwise ceased to be in force): Sch 2, Pt 29, cl 76(5).

The repeal does not affect the continuity of the operation of the s 12 bond during the 3-year period but if the offender fails to comply with it, the court is to apply the Crimes (Sentencing Procedure) Act 1999 and the regulations as if the amending Act had not been enacted: Sch 2, Pt 29, cl 76(2)–(3). However, if the order is revoked, the Act as amended by the amending Act applies to any sentence imposed: see further Consequences of revocation and commencement of the sentence at [5-790].

Section 12 Crimes (Sentencing Procedure) Act provided:

(1) 

A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a) 

suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and

(b) 

directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.

(2) 

An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.

(3) 

Subject to s 99(1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section.

(4) 

An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment.

In the Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 and cognate legislation, NSW, Legislative Assembly, Debates, 11 October 2017, the Attorney General (NSW), the Hon M Speakman SC, explained the rationale for repealing this sentencing option saying (at p 2):

They do not hold offenders accountable, 44 per cent of them are not supervised and they have been found to increase the New South Wales prison population.

[5-780] Breaches

Generally, proceedings for a breach of a good behaviour bond will continue to be dealt with under s 98, as in force before the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 commenced on 24 September 2018: Sch 2, Pt 29, cl 76.

Accordingly, a breach of a s 12 bond may still be dealt with by the court that imposed the suspended sentence, or “any court of like jurisdiction”, or “with the offender’s consent by any other court of superior jurisdiction”: s 98(1) Crimes (Sentencing Procedure) Act (as in force before 24 September 2018). The Local Court is a court “of like jurisdiction” for the purposes of dealing with a breach of a s 12 bond imposed by the District Court in a sentence appeal but is not empowered to deal with a breach of a s 12 bond for matters dealt with on indictment in the District Court or Supreme Court: DPP (NSW) v Jones [2017] NSWCCA 164 at [21], [22], [28].

A court of superior jurisdiction cannot deal with a suspected breach of bond imposed in an inferior court unless the offender expressly consents:Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653 at [43]; DPP (NSW) v Jones at [21]. This rule applies where a bond imposed in Local Court is confirmed by the District Court following a severity appeal. The Local Court only has jurisdiction to deal with the call-up proceedings (unless consent has been given): Yates v The Commissioner of Corrective Services, NSW at [43].

Section 98(3) (as in force before 24 September 2018) provided:

In the case of a good behaviour bond referred to in s 12, a court must revoke the bond unless it is satisfied:

(a) 

that the offender’s failure to comply with the conditions of the bond was trivial in nature, or

(b) 

that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond.

The mandatory terms of s 98(3), “a court must revoke”, are to be contrasted with the terms of s 98(2), “ a court may”, which previously governed the revocation of what was a s 9 bond under the Crimes (Sentencing Procedure) Act: DPP (NSW) v Burrow [2004] NSWSC 433 at [23].

In DPP v Nouata [2009] NSWSC 72 at [6] and DPP (NSW) v Burrow [2004] NSWSC 433 at [12], it was held that the magistrate erred by failing to make findings referred to in s 98(3)(a) and (b) during call-up proceedings where it was decided no action would be taken on the breach of a s 12 bond.

[5-782] Decision whether to revoke s 12 bond

In DPP (NSW) v Cooke (2007) 168 A Crim R 379 at [15], the Court of Appeal held that when a sentencer is deciding whether “good reasons” exist within the terms of s 98(3)(b), the principal consideration is the conduct giving rise to the failure to comply with the conditions of the bond and whether that conduct can be excused. Good reasons may include extenuating circumstances which explain the behaviour giving rise to the breach: DPP (NSW) v Cooke at [16].

The court held in DPP (NSW) v Cooke at [26] that the sentence to be imposed for the offence giving rise to the breach cannot be taken into account in determining whether to revoke the bond. The court may consider the seriousness of the behaviour giving rise to the breach and what that behaviour discloses about the attitude of the offender with regard to the obligations imposed by the bond. This will be relevant both to a determination of whether to revoke the bond and to an assessment of the sentence to be imposed for the offence giving rise to the breach.

The court also held in DPP (NSW) v Cooke that it was an error of law for the judge to take into account subjective matters relating to the offender that existed at the time of the breach proceedings, such as the offender’s need for rehabilitation rather than imprisonment. Subjective matters of the offender at the time of the breach proceedings are irrelevant to a determination under s 98(3)(b) but may have some role to play in what order is made after revocation: DPP (NSW) v Cooke at [15], [31], [34].

The court in DPP (NSW) v Cooke did not decide whether a court is permitted to take into account the impact of the revocation of the bond (as was then the case in SA): see R v Marston (1993) 60 SASR 320). Even assuming that a court could, it would be a rare case where it would be appropriate to do so. The court held at [25]:

… the intention of Parliament, that is made clear from the special provisions made for bonds under s 12 and the need for “good reasons” to be found, [is] that in the ordinary case a failure to comply with the conditions of the bond will result in its revocation. The court does not determine the existence of good reasons in a vacuum. It does so in the context of the policy and purpose behind the suspended sentence regime and by recognising that by excusing the breach the implicit threat made to the offender at the date of the imposition of the suspended sentence will not be carried out. If the realisation of this threat is avoided in inappropriate cases, it can only result in the lowering of respect for the orders of the court by the offender and the public in general.

[5-785] Timing of disposal of further or subsequent offences

In R v Cooke [2007] NSWCCA 184 at [18], the court concluded the revocation order should be made before any sentences are imposed for further offences committed after the imposition of the suspended sentence explaining that:

This has the virtue of making the exercise of discretion … a demarked and separate sentencing exercise … Sentencing for the breach first also allows for the principle of totality to operate in the event that both the breach and the conduct giving rise to it are punished by a term of imprisonment.

See also R v Taane [2014] NSWCCA 330 at [39].

Outstanding s 12 bonds

A judge who is aware of an outstanding s 12 suspended sentence bond imposed in the Local Court should refuse to pass sentence for further offences until the respondent has been sentenced for the breach of the s 12 bond by the Local Court: R v Nicholson [2010] NSWCCA 80 at [14]. Justice Howie said in R v Nicholson at [16] that it was “the duty of the prosecutor to bring such a matter to the attention of the sentencing judge if action has not been taken to have the breach of the bond dealt with before sentencing”.

If the prosecution discharges its duty the breach is properly dealt with before the proceedings for the further and subsequent offences: R v Dinh [2010] NSWCCA 74 at [85]. It is only then that a court can have proper regard to the issues of accumulation, concurrency and totality: R v Dinh at [85].

[5-790] Consequences of revocation and commencement of the sentence

Schedule 2, Pt 29, cl 76(4) Crimes (Sentencing Procedure) Act 1999 addresses the approach to be taken from 24 September 2018 once a s 12 bond has been revoked. References in the clause to the “amending Act” are to the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. Clause 76(4)(a)–(d) provides:

(4) If a court (under s 98 as previously in force but continuing to apply under subclause (3)) revokes the good behaviour bond:

(a)

the suspended sentence order ceases to have effect in relation to the sentence of imprisonment suspended by the order, and

(b)

the court must either:

(i) 

order that the offender be sentenced or re-sentenced to imprisonment to be served in full-time detention, or

(ii) 

make an intensive correction order under this Act, as amended by the amending Act, in respect of the offence concerned, and

(c)

this Act (including Part 4), as amended by the amending Act, applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, and

(d)

s 24 applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, but taking into account:

(i) 

the fact that the offender has been the subject of the good behaviour bond, and

(ii) 

anything done by the offender in compliance with the offender’s obligations under the good behaviour bond

The effect of s 12 and cl 76(4) is that the suspended sentence of imprisonment commences on the date the bond is revoked.

Part 4 Crimes (Sentencing Procedure) Act (as amended by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act) applies to the sentencing or resentencing of the offender once the s 12 bond is revoked. Part 4 makes provision for the court to set a commencement date and to set a non-parole period or fixed term. In addition, s 24 applies to the sentencing or re-sentencing of the offender as it would to any offender being sentenced for an offence but the court also takes into account the fact the person has been the subject of a bond and anything they have done in compliance with their obligations under the bond: cl 76(4)(d).

If the court makes an intensive correction order (ICO) then the provisions of the Act as amended apply to that ICO: cl 76(4)(b)(ii). Under the old s 99(2) a court could, after revoking a s 12 bond, make an order directing that the sentence of imprisonment be served by way of an ICO. In Lambert v R [2015] NSWCCA 22 at [46], the court found that the sentence proceedings miscarried because the judge failed to consider the various options provided for by s 99(2) and whether they were realistic sentencing outcomes. A similar approach may be warranted with respect to cl 76(4)(b).

There is no prohibition on the court considering the form of imprisonment selected when determining whether it should decline to set a non-parole period under s 45 Crimes (Sentencing Procedure) Act: R v Dickinson [2005] NSWCCA 284 at [15]–[16]. In R v Dickinson at [16], the court said that this is:

… essential to an informed decision about whether there should be parole and when it should commence. Not to have regard to such matters would be contrary to common sense as well as sound sentencing practice.

[5-800] Pre-sentence custody

Section 24(a) Crimes (Sentencing Procedure) Act 1999 requires the court to take into account any time for which the offender has been held in custody in relation to the offence. The question of when and how pre-sentence custody should be taken into account in the case of suspended sentences was discussed in White v R [2009] NSWCCA 118 and Pulitano v R [2010] NSWCCA 45. Before 24 September 2018, two approaches were suggested. The first involved time being taken into account when the suspended sentence was imposed. This could include reducing the sentence imposed and/or the manner in which it is to be served. The second involved taking pre-sentence custody into account when the bond was revoked: Pulitano v R at [9]. There is no statutory power to later reduce the duration of the suspended sentence at the call-up proceedings (following the revocation of the s 12 bond). It is also not permissible to post-date or backdate a suspended sentence when it is imposed: Pulitano v R at [9]; R v Egan [2013] NSWCCA 196 at [82].

1. At the time of revocation of the bond

The sentencer imposes the suspended sentence but does not at that stage reduce it for any pre-sentence custody. Once the bond is revoked the sentencer backdates the sentence of imprisonment — either the non-parole period or fixed term — to take into account pre-sentence custody. The court must also take into account the fact the offender had been the subject of the good behaviour bond and anything done in compliance with the bond while it was on foot: s 24 and Sch 2, Pt 29, cl 76(4)(d). This approach ensures pre-sentence custody is deducted from the non-parole period rather than the term of sentence. This is fairer where the sentencer finds special circumstances: R v Youkhana [2005] NSWCCA 231 at [10]; R v McCabe (2006) 164 A Crim R 344 at [28]–[29].

2. At the time of the imposition of the suspended sentence

The sentencing judge in White v R [2009] NSWCCA 118 at [15]–[18] gave effect to 9 weeks pre-sentence custody by imposing a sentence of less than 2 years duration and by suspending it. The applicant subsequently breached the bond and was called up. The second judge refused to take into account pre-sentence custody on the basis the applicant had already been given credit for it when the suspended sentence was first imposed: White v R at [17]. The court held that there was no error in the approach taken. A similar approach was taken by the judge in Pulitano v R at [9], “albeit not explicitly”: at [15].

One of the problems faced by the sentencer in the call-up proceedings — at least in the Local Court where remarks on sentence are unlikely to be available — is knowing how the first sentencer dealt with pre-sentence custody.

[5-810] Appeals against revocations

An offender dealt with under Sch 2, Pt 29, cl 76 Crimes (Sentencing Procedure) Act 1999 has the same rights of appeal as for any other sentence: cl 76(4)(e).