R v Bates [2022] NSWDC 72

District Court New South Wales

Medium Neutral Citation: R v Bates [2022] NSWDC 72 Hearing dates: 11 February 2022 Date of orders: 11 February 2022 Decision date: 11 February 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: The application for leave to appeal is refused. Catchwords: CRIME – APPEAL – LEAVE TO APPEAL OUT OF TIME – INTENSIVE CORRECTIONS ORDER FOR BREACH OF APPREHENDED DOMESTIC VIOLENCE ORDER – REPEATED BREACHES OF COMMUNITY CORRECTIONS ORDERS Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Sentence Parties: R – Crown Appellant – Lyndon Bates Representation: Crown Makin Appellant Bellingham File Number(s): 2021/00146680 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is an application for leave to bring a severity appeal against a sentence passed by Magistrate Godwin, sitting in the Local Court at Manly, on 13 July 2021. The applicant had been charged that between 9:30am and 12:00pm on 15 May 2021, at Newport, he did knowingly contravene a restriction specified in an Apprehended Domestic Violence Order ("ADVO"). To that charge the applicant pleaded on 24 May 2021, and that led to his appearing for sentence before Magistrate Godwin on 13 July 2021. Her Honour imposed an Intensive Corrections Order ("ICO") for a period of nine months commencing on 13 July 2021, and concluding on 12 April 2022. In other words the ICO Is due to expire in approximately two months' time. The ICO has not been stayed and therefore, unless it be set aside, it will conclude on 12 April 2022, that is just over two months' time. 2. Inter alia the ICO required the appellant to perform 100 hours of community service. I have been told, without objection from the Bar table, that so far the appellant has actually performed 30 hours of community service, but it is anticipated that he might be able to complete the 100 hours of community service by the time of the expiration of the ICO. 3. When the appellant appeared before her Honour on 13 July 2021 he was unrepresented. However, it is accepted that her Honour would have told the appellant that if he breached any term of the ICO that the Parole Board might revoke the order and the balance of the period of the ICO would be served as a full-time custodial sentence. 4. The applicant had a period of 28 days in which to lodge an appeal to this Court. However, he did not lodge an appeal until 17 August 2021. He applies for leave to appeal out of time for reasons set out in the application for leave to appeal dated 17 August 2021. The grounds set out in the application are these: "Family Court proceedings have been my highest priority. I was given legal advice in regards to the severity of an ICO and how any allegation or accusation against me had instantly imposed a custodial sentence with no judicial fairness required." 1. It is accepted by the appellant that that represents a misunderstanding of the legal advice that was given to him. A mere allegation or accusation does not lead to the revocation of an ICO. The commission of a crime would, but the Parole Board has to apply the rules of natural justice. It is only if the evidence concerning the commission of a further offence is overwhelming that the Parole Board would revoke an ICO. Usually that occurs only when the commission of a subsequent offence is conceded by the person who had previously been serving an ICO. 2. Candidly, the legal representative for the appellant admitted that he had been given advice by the barrister appearing for him in the Family Law proceedings to lodge an application for leave to appeal against the imposition of the ICO. It would appear that to some extent, the current applications were commenced because of tactics being employed in the Family Law proceedings. I have been told that there has been a three-day hearing in the Family Court and that judgment in that Court is currently reserved, but it is not known when the decision will be made. 3. The current proceedings have been before this Court on three earlier occasions and have been adjourned on those three earlier applications, no doubt because of the outstanding Family Law proceedings. In my view, the mere use of the appeal process as a tactic in Family Law litigation would not ground a successful application for leave to appeal out of time in this Court. However, I do not need to so decide because I have reached the view that the severity appeal should, in any event be dismissed. The reason for that is the applicant's criminal record which is lengthy, but the relevant part of the appellant's record relates to what may be described as "domestic violence" offences. 4. The first of those offences occurred on 17 January 2019 when the appellant was 39 years old. He was charged with intentionally choking a person without that person's consent. He was sentenced to imprisonment for 87 days. There is also a common assault committed on the same day for which the Local Court imposed a Community Corrections Order ("CCO") for a period of two years commencing on 11 July 2019. The CCO was breached and resulted in a call up when a further CCO was imposed, commencing on 22 October 2019 concluding on 21 October 2021. There was a further breach of the second CCO for which the applicant was called up and a further CCO for a period of 12 months was imposed, commencing on 13 July 2021 and expiring on 12 July 2022. That is this CCO initially imposed for the common assault on 17 January 2019 and was breached by the offence which currently brings the applicant before this Court. 5. There was a further offence of contravening a prohibition or restriction in an Apprehended Violence Order ("AVO") committed on 21 January 2019 four days after the earlier breach for which a further CCO was imposed. There were call ups for that as well. There was a further breach of a prohibition or restriction in an AVO on 16 February 2019, for which a further CCO of two years was imposed. There was a further breach of a prohibition or restriction in an AVO on 18 March 2019 for which a CCO was imposed. There was a further breach of a prohibition or restriction in an AVO on 26 July 2019 for which a 12-month CCO was imposed. There was yet another contravention of a prohibition or restriction in an AVO on 26 August 2019 for which a $1,000 fine was imposed. There was a further breach of an AVO on 24 January 2020 as well as an offence under Commonwealth law of using a carriage service to menace, harass or offend, for which, again, an order was made in respect of the State law offence for a CCO for a period of two years. 6. The next relevant offence was the offence which currently brings the applicant before this Court. There has been a subsequent breach of the AVO in what might be thought to be extenuating circumstances on 6 October 2021, but I completely ignore that as not being relevant. As the severity appeal cover sheet tells me, the offence now in question resulted in the breach by the appellant of six earlier orders of the Local Court. Notwithstanding the six earlier breaches of a CCO, the applicant through his lawyer asks me to set aside the ICO and impose, in lieu thereof, a further CCO. 7. With the utmost respect to those who think otherwise, where an offender continues to reoffend and breach CCO's, the Courts can only impose a higher penalty. On this occasion, the learned magistrate imposed a nine-month ICO. That was the proper exercise of her discretion in my view. Furthermore because of the time lapse caused by the adjournments sought and granted to the applicant, the bulk of the ICO has already been served. As I have said, a little over two months is left and it would appear to me to be completely otiose exercise to set aside the ICO and replace it with a further CCO. 8. In my view there is no merit to this application against the severity of the sentence imposed by Magistrate Godwin on 13 July 2021 and the appeal therefore would have been dismissed in any event. For those reasons the application for leave to appeal is refused and, if it had not been refused, the appeal would, in any event, have been refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2022