New South Wales District Court CITATION: Binge, Raymond v D.P.P [2010] NSWDC 288 JUDGMENT DATE: 29 September 2010 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ Drive with high range PCA: Appeal upheld. Conviction confirmed. DECISION: 9 months imprisonment imposed by the learned magistrate confirmed. 6 months non-parole period imposed by the learned magistrate quashed in lieu imprisonment suspended conditional upon the appellant entering into a bond to be of good behaviour for a period of 9 months 5 years disqualification period imposed by the learned magistrate quashed in lieu disqualified for a period of 12 months. Resist police officer in execution of duty (Breach of bond)- H160565693: & Intimidate police officer in execution of duty (Breach of bond) - H160565693: No action taken on the breach of s.12 bonds. CATCHWORDS: Criminal Law - District Court Severity Appeal - Suspended Sentence Call-up - High range PCA - intimidate police - assault police in execution of duty - seriousness of offences assessed - breach of s.12 bonds outlined - principles of revocation identified and discussed - seriousness of breach of s.12 bond assessed - "good reasons" for excusing the offender's failure to comply identified - absenceof full range of sentencing options in rural NSW - periodic detention - home detention - effective discrimination for rurual and regional based offenders - good reasons in the interest of justice not to revoke - no action taken on the breach LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 The DPP v Burrows & Anor [2004] NSWSC 433 CASES CITED: The DPP v Cooke & Anor [2007] NSWCA 2 R v Mark John Doyle NSWCCA unreported 7 March 1996 PARTIES: Raymond Edward Binge Director of Public Prosecution FILE NUMBER(S): 2010/153249 COUNSEL: Defence: D McCallum SOLICITORS: Crown: Ms S Hely JUDGMENT 1. Raymond Binge is a thirty-five year old Aboriginal man, born in Moree, raised by his aunty, unable to get along with his mother. He has been before the courts on numerous occasions since 1990. No doubt in that description there may be many reasons why some individuals may discriminate against him. Of course there are laws to prevent or at least to minimise areas of potential discrimination by individuals. The last place one might expect discrimination is within the administration of justice. The notion of equality before the law embraces the concept of equal access for all to the range of sentencing dispositions that may be imposed by a judge in any given case. 2. As this case demonstrates, access to the full range of sentencing options is determined by distance. Those offenders in rural and regional New South Wales may well feel discriminated against, while lacking in quality before the law, based upon their geographical location. A discrimination that may result in harsher penalties being imposed in rural and regional regions because more therapeutic sentencing options are unavailable. 3. On 13 June 2010, Raymond Edward Binge was charged with driving with a high range prescribed concentration of alcohol. At that time, in respect of an earlier incident, he was on two suspended sentences of seven months. The two s 12 good behaviour bonds related to two earlier offences and had three days to run. Any conviction for the high range prescribed concentration of alcohol will see the appellant burdened with either accepting the revocation of the bond or in the circumstances of this case, establishing good reasons for excusing the appellant's failure to comply with the conditions of the bond. Appeal Matter 4. On 9 August 2010 the appellant appeared before Magistrate Holmes at the Moree Local Court. He pleaded guilty to a high range prescribed concentration of alcohol. His Honour sentenced the appellant to a term of imprisonment of nine months with a non-parole period of six months. The appellant has consented to this court calling upon him to appear in respect of a breach of his s 12 bond. I will come to the circumstances in which that bond was given shortly. 5. Facts of the high range prescribed concentration of alcohol: Some seven months ago, the appellant and his family determined to move from Moree to Narrabri, to make a fresh start. On the weekend of the 12-13 June, the appellant had returned to Moree for a family function. At about 3.30am, Sunday 13 June, 2010 he was driving from that function to his mother's home, where, as I understand it, he would rest and later that day return to Narrabri. The distance he had driven from the function to the mother's home was relatively short. There was no traffic on the road. There was nothing about his driving which suggested an impairment of managing the vehicle. He was the sole occupant of the vehicle. He was familiar with the area he was driving through. 6. It was in those circumstances he was pulled over for a random breath test. It was positive. He was subjected to a breath analysis. The reading was 0.150 grams of alcohol per 100 millilitres of blood. He had consumed beer between 8.30pm and 2.45am. Section12 Bond Matters 7. Facts of the Intimidation: On 2 January 2009, police noted two young children on the road, on a motorcycle. The younger one aged five or less, was standing on the rear of the bike with no shoes, no shirt and no helmet. The bike was driven into the appellant's residence. The police patrolling nearby came and spoke to the appellant, of their concerns with the children riding on the motorcycle, on a public road in those circumstances. The appellant who was well affected by alcohol, became obstreperous towards and offensive in his manner of dealing with the police. Notwithstanding members of his family/or associates, told him he would be locked up if he continued, he said to the senior officer, Senior Constable Gibson, "I will fucking kill you, you cunt. Come on cunt, I will fucking get you". He moved into the senior constable's personal space and was "check drilled", which I understand to be physically pushed to a less threatening distance. The senior constable told the appellant if he kept on continuing to try and intimidate him, the appellant would be arrested for intimidating police. 8. The appellant's response was, "I don't give a fuck". He approached the police officer again, "Come on you pretty boy cunt, I will fucking kill you. Fuck you. You are always picking on me and my boys". There was a second "check drilled". The appellant approached again, "Don't fucking, you pushed me you fucking cunt. Fuck you". At this point, Senior Constable Gibson called for backup. The appellant approached the senior constable again, this time, outside the property on the footpath. "Come on you pretty boy cunt, fucking fight. I will fucking get you, you cunt". The appellant stepped towards Senior Constable Gibson, moved his arm back and into a striking motion. If it was the right arm, it should be noted that the appellant had, in that hand, a full bottle of beer. Senior Constable Gibson said, "If you don't put the bottle down, you'll be sprayed". The appellant replied "Fuck you cunt. Fucking pretty boy copper cunt". 9. Senior Constable Gibson feared for his safety in that he realised that the appellant might use the stubby as a weapon. Senior Constable Gibson knocked the bottle from the appellant's grip and proceeded to arrest the appellant. The arrest was resisted, necessitating a struggle to place the appellant into or within the paddy wagon. On these facts, the objective criminality of each offence, must now be identified. Objective Criminality: Assault Officer In Execution Of Duty 10. Senior Constable Gibson was seeking to make the offender aware of the dangers to his children, in their use of a motorcycle in a public street, aggravated by lack of protective clothing on the younger boy. His police practice was best practice. It was aimed at preventative measures rather than confrontation. His message was going to responsible parenting and road safety. His message was about the proper welfare of the appellant's children. 11. The appellant chose to misinterpret it, or refused to recognise his own irresponsibility in permitting his children to use the motorcycle in such circumstances. Serious as this situation is, the execution of duty at the time was not about investigation of major or serious crime, or an obstruction of an officer seeking to arrest a criminal for serious breaches of the criminal law. 12. The assault when began, was the recklessly causing Senior Constable Gibson to apprehend immediate and unlawful violence. That came to an end with the attempted battery of Senior Constable Gibson, by a highly intoxicated appellant, while still holding a stubby bottle in his right fist. As I read the facts, the battery was never consummated. There was no suggestion of any physical contact between officer and offender, other than three self-defensive acts initiated by Senior Constable Gibson and ultimately the forceful arrest. So stated, the assault falls towards the lower end of assaults. It did not contain a battery. It might better be described as offensive conduct. An overview of the charged offence, puts objective seriousness of this offence as towards the lower range of assaulting officers in the execution of their duty. Objective Criminality Of Intimidate Officer In Execution Of Duty 13. The only point at which the evidence establishes Senior Constable Gibson was fearing for his safety, is the point at which the senior constable perceives the appellant whilst holding a stubby bottle in his hand is about to strike the officer. The officer's concern arises no doubt because of impact to him with a fist holding a bottle, which may cause the bottle to break and thereafter the risk of lacerations or worst, would arise, from the naked jagged edges of the glasses. Significantly, that was a danger both men were entertaining, if entertaining be the right word. 14. The fear of the senior constable must be assessed as to its intensity, in the circumstances in which it was created. Part of those circumstances I have referred to. Other matters include the officer's experience in dealing with these situations. I only know that he was a senior constable which suggests some experience. He was equipped with a capsicum spray. He was dealing with a man of small stature who was well inebriated. He acted quickly and removed the threat. Immediately thereafter he set about restraining and arresting the appellant. I am satisfied his fear was entertained for a very short period. In other words the intimidation was not long lasting. He knew precisely how to diffuse the situation causing the fear and did so immediately. He appears to recognise that the threats being made were empty threats of a drunken man, incapable of carrying them out but for the assault and attempted battery. 15. His real and valid concern was the potential danger to him of the glass container in a drunken man's right hand. So analysed, this offence of intimidation likewise, falls to the lower end. With respect to his Honour in the court below, he may have taken into account as part of the intimidation, the threats being made by the appellant prior to the attempted battery. If so, his Honour would have missed the significance of the words spoken by the senior constable, "If you keep on to try and intimidate me, you will be arrested for intimidation". These words make clear to me at the point they were uttered the officer was not intimidated but was warning the appellant to stop trying to intimidate. 16. On the other hand, the facts do make clear the officer entertained fear for his safety at a time of the attempted battery. 17. As so often happens when s 12 bonds are given, those representing the offender fail to understand a term of imprisonment was imposed. There was no appeal from these sentences. I must therefore regard them as properly imposed. Subjective Matters 18. The appellant has three children aged 11, 6 and 4. He has been in a relationship with Delise Bernie for nearly a decade and a half. He completed Year 9, has done working in the agrarian sector, seasonal work in cotton, farm work. He has also worked in the building industry as a labourer, working on some significant building sites in Moree. As earlier noted, he does not get along well with his mother and apparently some of his siblings. He decided to move to Narrabri because he was having trouble in the community, particularly with those he described as being "in my mob", by which I understand him to mean immediate and extended family. He claims things had improved for him and his family in Narrabri where he is a newbie. His children are attending school, he says. He is participating in a men's group, where he talks about his present and past problems. He is seeking employment through an agency that focuses on finding positions for Aborigines, looking for work. He says he is drinking less. Indeed he claims the offence was an exception to his drinking patterns over the prior six months. 19. He says his lifestyle is one hundred per cent better. His eldest boy is however struggling. Last year his son needed a heart operation to correct a heart murmur. This year there has been acting out, including threats from the boy towards his mother. As the threats were described, there was about them, a haunting echo of the words and concepts used by the offender towards Senior Constable Gibson. The eleven year old has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and is taking medication. The boy claims the medication is playing a part in his behaviour. There may also be issues at school regarding his behaviour and perhaps bullying behaviour towards him. To his credit the offender is seeking help from the Namoi Family Support Services and the Narrabri District Aboriginal Community Development. Whether it was a project or program, I cannot quite remember. 20. I am satisfied the move to Narrabri was motivated at least in part for a new start. The family has appropriate housing. The appellant is making solid efforts to be involved in the community. He is pursuing work opportunities and probably modified his drinking to some extent. 21. It should be noted the date of the intimidation and assault police was in January 2009 and the date of the prescribed concentration of alcohol was 17 months later, in June 2010. One of the longer intervals between his offending. I should note the appellant has an extensive criminal record but all of it is confined to the summary jurisdiction. Of significance were three prescribed concentration of alcohol offences between 1994 and 1997, two of which were high range prescribed concentration of alcohol, although before the Children's Court, he has no convictions. There are 46 discrete occasions since April 1992, when he has been charged with offences. Much of his offending conduct relates to alcohol offences and driving offences. There are offences of dishonesty and assaults relating to domestic violence. Call-up For The Breach Of Section 12 Bonds 22. I must determine the court's approach to the revocation of the s 12 bonds and if revoked, the construction of a sentence to be served before determining an outcome of the appeal matter. Relevantly, s 98 of the Crimes (Sentencing Procedure) Act 1999 provides the following: 98 Proceedings for breach of good behaviour bond (1) If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond: (a) the court with which the offender has entered into the bond, or (b) any other court of like jurisdiction, or (c) with the offender's consent, any other court of superior jurisdiction, may call on the offender to appear before it. (1A) If the offender fails to appear, the court may: (a) issue a warrant for the offender's arrest, or (b) authorise an authorised officer to issue a warrant for the offender's arrest. (1B) If, however, at the time the court proposes to call on an offender to appear before it, the court is satisfied that the location of the offender is unknown, the court may immediately: (a) issue a warrant for the offender's arrest, or (b) authorise an authorised officer to issue a warrant for the offender's arrest. (1C) For the purposes of subsection (1) (c), a court is of superior jurisdiction to the court with which an offender has entered into a good behaviour bond if it is a court to which the offender has (or has had) a right of appeal with respect to the conviction or sentence from which the bond arises. (2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court: (a) may decide to take no action with respect to the failure to comply, or (b) may vary the conditions of the bond or impose further conditions on the bond, or (c) may revoke the bond. (3) In the case of a good behaviour bond referred to in section 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. 23. The fate of the s 12 bonds are before me as a consequence of the appellant consenting to this court considering the issue of revocation. I am satisfied the appellant failed to comply with a statutory provision of the bond, namely that he was to be of good behaviour. If the matter was to be considered pursuant to s 98(2). The exercise of discretion appears to be unfettered post statute, so long as one of three outcomes is reached: no action, variation of conditions of the bond or revocation. However, with s 12 bonds, there is a presumption of revocation saved only by two considerations: one- was the breach, trivial in nature or two- are there good reasons for excusing the failure to comply. 24. There are two cases I have been referred to, dealing with the exercise of discretion, as constrained as it is by s 98(3) Crimes (Sentencing Procedure) Act 1999, namely The DPP v Burrows & Anor [2004] NSWSC 433 and The DPP v Cooke & Anor [2007] NSWCA 2. In the latter case, Sully, Howie, Price JJ were sitting as judges of appeal. Sully and Price JJ subscribed agreement to the reasons of Howie J. Notwithstanding Hidden J's judgment (Burrows), reflects the opinion of a single judge sitting at first instance, his formidable reputation requires that his opinion be considered also, unless expressly disavowed by the judges presiding in the appellate jurisdiction. 25. In exercising the discretion constrained by s 98(3)(b), o It is necessary to recognise that the breach concerned is not trivial in nature (Cooke). o Existence or otherwise of "good reasons" for excusing failure to comply with the conditions of the bonds, requires the focus must principally be upon the behaviour giving rise to the failure and whether that failure should be excused. o "Good reasons" for the taking action may be actually found in matters other than the conduct giving rise to the breach. o Whether the court can have regard to matters other than that behaviour is not yet determined at appellate level (Cooke), o 98(3)(b) does not permit the excuse of such a breach by reason only of the offender's circumstances at the time the court is considering revocation of the bond (Burrows), cf Cooke where Howie JA expressed his opinion that subjective circumstances of the offender at the time of or revocation of the bond, were an irrelevant consideration [from this distance, one does not know how fully that aspect was argued before the Court of Appeal but I find it difficult to imagine that a serious or traumatic adverse change in health, for example a motor vehicle quadriplegic condition of the offender subsequent to the breach, or the imminent death at the time of proceedings for revocation, could not alone provide good reasons for excusing a failure to comply. R v Mark John Doyle NSWCCA unreported 7 March 1996 was a case where a young man suffering Aids was in breach of a bond and the Court, was not prepared, particularly in a case that he was trying experimental drugs, to put him into custody for the last month of his life. So there is some superior court authority that is contrary to opposition: o Where the breach is relatively minor, it might be appropriate to weigh its gravity against the consequence of revocation, especially where the suspended sentence is a long one (Burrows). Minds may differ as to what is a long sentence. From a prisoner's viewpoint, a month is a long time in prison. From a sentencing judge's perspective, a long sentence is more likely to be measured in years. o The court should not have regard to the severity of the penalty to be imposed for the fresh offence when considering revocation (Cooke). 26. Presumably, the doctrine of totality would still apply when setting the actual sentences if one is dealing with both the s 12 offence and the breach offence at the same hearing. It is my view, s 5(1) of the Crimes (Sentencing) Procedure Act, still has work to do, even though the determination has already been made by the original sentencing judge, that a term of imprisonment is called for. 27. Arguably s 5(1) still recognises that a full time custodial sentence is harsher than periodic detention or home detention. The tensions between s 5(1) and s 98(3)(b), are factors that should be faced if one is to recognise the differences between suspended and a full time incarceration order. Howie J, although not casting his argument in terms of the tensions I have referred to, appears to deal with them in a principalled way, when his Honour says, at para 20... "The impact of the revocation of the bond can be ameliorated in this State, by ordering that the sentence that is enlivened by the breach, be served by a periodic detention or home detention. There has also been a recent change in the legislation so that the non parole period is fixed at the date of revocation and not when the sentence was passed or suspended". These differences indicate to me that, assuming that a court could take into account the impact of the revocation of the bond, it would be a rare case indeed in which it would be appropriate to do so in this State. 28. In this particular case, it is at this point that the difficulty arises as a result of geographic discrimination faced by offenders being held accountable in regional and remote locations. As is the case here, that many of the offenders are Aboriginal who are disadvantaged in many well recognised aspects of their lives. It makes this particular discrimination more poignant in their cases. I am not suggesting that the geographical discrimination is racially based. Far from it. It affects many regional and rural offenders but I am simply acknowledging a poignancy when the particular discrimination falls, where other discriminations have also fallen. Resolution Of The Call-up- To Revoke Or Not? 29. I have noted the question of whether the court can have regard to matters other than behaviour, giving rise to the breach is not yet determined. That being so, provided I exercise my discretion, in accordance with s 98(3)(b) and the principles I have distilled, there is no prohibition on my finding "good reason" in matters going beyond the behaviour associated with the breach. 30. I have noted the behaviour constituting the breach is a high range prescribed concentration of alcohol. The reading is on the bottom rung of the high range prescribed concentration of alcohol. There appear to be no aggravating features to the objective criminality. There is a history, although 13 years previous, of other prescribed concentration of alcohol. The driving record also is not good. The offence constitutes a serious breach of the road rules and strikes at public safety on the roads. 31. The offence is aggravated by the breach of the s 12 good behaviour bonds I am considering. A sentence of imprisonment is called for, although absent the s 12 matters, that sentence may not need to be one requiring a full time incarceration order. That consideration of the sentence is simply to demonstrate the reflection of the seriousness of the offence. 32. I have analysed the original offences. In the absence appeal, the orders of the Local Court are entitled to respectful compliance. 33. Properly reviewed, the revocation of this s 12 bond does not call for incarceration orders. It is a matter where proper exercise of discretion, unfettered by questions of availability of existing resources, could have seen this matter resolved by a periodic detention order. Even more severe would have been a home detention order. I have not inquired as to whether the appellant has a land line at home, nor whether his record of domestic violence would exclude him, but I imagine it would. For the purposes of this judgment, I have assumed he may have qualified for a non full time custodial order. 34. In any event, the capacity of the court to ameliorate the full time custodial order is so comprised, neither other alternative to full time custody is open to a court sentencing in Moree. 35. This court should be astute against being an unaware or unwitting agent that promotes, supports or sustains discrimination through its decisions, no matter what the source or reason for the discrimination. I have identified disadvantages to those appearing before the courts in rural areas. In my view, they are unfair. 36. No matter what the source or reason for it, for the court to support or sustain such discrimination by harsher outcome, would be to tolerate the discrimination. For my part, I am unwilling to do so. I acknowledge the tensions between just deserts and punishment at some level, required by the application of the usual principles, in dealing with individuals for breach of s 12 bonds, and the finding of good reasons in this case. In my own view, the more important doctrine of equality before the law, should be given greater weight in the face of the geographical discrimination. 37. The date- setting of the s 12 bond is a hap chance. Listing matters in the Local Court is influenced by laying of charges, available court time, availability of prosecutors and of course, availability of the defence and dealing with applications or adjournments. 38. The relevance of all this is to highlight the 17 month period of non offending is more than double the length of the bond. Why there was a delay of ten months in finalising this matter is unexplained. The appellant has been making genuine efforts to turn his life around. Full time incarceration is counter productive to rehabilitation. This is not to ignore the importance of full time incarceration as punishment or as an award of just deserts. However if the primary aim of sentencing is to protect the community, short term protection via incarceration is a poor trade off for long term protection of the community through rehabilitation and community involvement. This appellant seems to have begun that path. 39. Finally I should note the importance to me of the Crown's decision not to seek to dissuade me from the course I indicated in the course of argument I was intending to take, when I gave her the opportunity so to do. 40. In all these circumstances, the appellant has satisfied the onus of establishing that there are "good reasons", for excusing the offender's failure to comply with the conditions of the bond. I have decided to take no action with respect to the appellant's failure to comply with the bond. Resolution Of The Appeal 41. My formal orders in the appeal are these. The conviction is confirmed. The sentence imposed by the learned magistrate is confirmed. The non parole period is quashed. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, I suspend the operation of the sentence, conditional upon the appellant: 1. Being of good behaviour and 2. Abstaining from alcohol for the period of the bond. 42. I want the bond noted that I wish to be notified within 48 hours for any arrest and circumstances in which alcohol is a factor. I direct the registry to serve a copy of this bond to the officer in charge of the Narrabri Police Station. 43. To the disqualification, the disqualification order made by the Local Court is quashed and in lieu the appellant is disqualified for a period of twelve months. Was there a stay? DISCUSSION HIS HONOUR: So that the order will be from the date that his licence was suspended. Would you explain all that to him? 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.