Drug Court of New South Wales CITATION : R v Riquelme [2001] NSWDRGC 8 Regina PARTIES : -v- RIQUELME, Daniel FILE NUMBER(S) : 0144 of 2001 CORAM: Her Honour Senior Judge Gay Murrell SC CATCHWORDS: :- Drug Court Act - Revocation of s12 bonds under the Crimes (Sentencing Procedure) Act 1999 - no jurisdiction LEGISLATION CITED: Drug Court Act 1998 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) CASES CITED: DATES OF HEARING: 24/09/2001 and 27/09/2001 DATE OF JUDGMENT: 29 September 2001 Regina - D. Muddle, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender - S. Healy, Legal Aid Commission (NSW) JUDGMENT: 1. The matter is before the Court for a preliminary decision in relation to a legal issue. Mr Riquelme has been referred to the Court in relation to a number of charges which clearly were properly referred, and which have not previously been the subject of any sentence. He has also been referred to the Court in relation to an application for revocation of a bond imposed under s12 of the Crimes (Sentencing Procedure) Act 1999. That bond was imposed by the Local Court. 2. The prosecution contends that the s12 bond must be revoked, and a sentence of imprisonment served, and argues that the Drug Court has no power to suspend the effect of that sentence under s7 of the Drug Court Act 1998. Alternatively the prosecution contents that, in the exercise of its discretion under s7 of the Act, the Court would decline to suspend a s12 bond sentence of imprisonment which had been activated following revocation of the bond. 3. Section 12 of the Crimes (Sentencing Procedure) Act 1999, appears in Part 2 of that Act, and provides: (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 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. . . . (3) Subject to s99(1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the term of the sentence. 4. In imposing a s12 bond, a sentencing court engages in a two step process. First the court determines that a sentence of imprisonment, and not some lesser sentence, is called for. Second, the court determines that the term of imprisonment should be suspended and the offender afforded the opportunity of avoiding the ultimate sanction of serving a sentence of imprisonment. 5. Section 98 appears in Pt 8 of the Act, which deals with sentencing procedures for good behaviour bonds. Section 98(1) provides: (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, may call on the offender to appear before it. Subsection (3) provides: (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. 6. In the present case it is not contended that the failure of this offender to comply with conditions of the bond was trivial in nature, nor is it contended that there were good reasons for excusing his failure to comply. Consequently, revocation of the s12 bond is mandatory. 7. Section 99 of the Act provides: (1) If a court revokes a good behaviour bond: (a) in the case of a bond referred to in section 9, it may re-sentence the offender for the offence to which the bond relates, or (b) in the case of a bond referred to in section 10, it may convict and sentence the offender for the offence to which the bond relates, or (c) in the case of a bond referred to in section 12: (i) the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting the term of the sentence, and (iii) subject to the requirements of Part 4 having been complied with, the sentence takes effect. Subsection (2) provides: (2) Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates (disregarding any part that has already been served) is to be served by way of periodic detention or home detention. 8. It is instructive to consider the structure of the Act. Part 1 deals with preliminary matters and Pt 2 is entitled "Penalties that may be imposed". As might be expected, Pt 2 canvasses various sentencing options, including penalties of imprisonment, good behaviour bonds, dismissal of charges, Griffiths remands, suspended sentences and community service orders. Part 3 of the Act deals with sentencing procedures generally, and Pt 4 deals with sentencing procedures for imprisonment. The first matter dealt with in Pt 4 concerns setting terms of imprisonment. Section s44(1) provides: (1) When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). 9. Relying on s99(1)(c), the prosecution argues that, once revocation of a s12 bond has occurred, the only issue for the revoking court is how the sentence of imprisonment is to be served, i.e. questions of parole periods, and whether the sentence should be served by way of a periodic detention order or home detention. The prosecution contends that while, pursuant to s99(2), periodic detention and home detention options remain open to the revoking court, following revocation of a s12 bond, the full sentencing process is not reopened. It is a very limited aspect of sentencing that occurs. 10. I agree with that submission. It is clear that the sentencing process relevantly entails three steps. First, a sentencing court must determine whether no penalty other than imprisonment is appropriate. Second, having made that determination, pursuant to s44(1)(a), the court is to set the term of the sentence. Third, the court moves on, in a relevant case, to consider whether the sentence should be suspended under ss(2), or, alternatively, to consider how the sentence should be served. Once it has been determined that a sentence of imprisonment is appropriate, and the term of the sentence has been fixed then the court may suspend the sentence pursuant to s12. If a s12 bond is later revoked, the revoking court returns to the same point in the sentencing process from which it departed when suspending the sentence under ss(2). That involves determining matters such as non parole periods and setting the date from which the sentence is to commence. It is only a partial sentencing process which occurs following revocation of a s12 bond. 11. Consistent with this approach, pursuant to s99(2) the revoking court is expressly empowered to consider alternatives to full time sentence, i.e. the Court may determine that periodic detention, or home detention is appropriate. Matters of periodic detention and home detention are not matters which are dealt with under Pt 4 of the Act, but matters which are dealt with under Pt 2. It has been necessary for the legislature to expressly preserve to the revoking court a power which it would not otherwise have had to refer back to Pt 2 and determine that a revoked s12 bond sentence should be served by way of periodic detention or home detention. 12. It is unfortunate that the Drug Court sentencing option is not incorporated into the Crimes (Sentencing Procedure) Act. The interrelationship between s7 of the Drug Court Act and s12 of the Crimes (Sentencing Procedure) Act 1999 is not clearly articulated. Had the Drug Court sentencing option been incorporated into the Crimes (Sentencing Procedure) Act, it would have appeared in Pt 2, where the various sentencing options, including the s12 bond sentencing options, are set out. It would not have appeared in Pt 4, which deals with sentencing procedures for imprisonment after imprisonment has been selected as the only appropriate sentencing option. 13. Despite the fact that the Drug Court sentencing option is not referred to in the Crimes (Sentencing Procedure) Act, it is clear that there are two separate sentence suspension schemes available to courts which are original sentencing courts, i.e. the scheme provided under the Drug Court Act and the scheme provided by s12 of the Crimes (Sentencing Procedure) Act. The differences between the two schemes are quite significant. Once a sentencing court goes down the s12 path, that is the path that the offender is locked into. The only possibility for a sentenced offender jumping off the s 12 path to full time imprisonment following revocation of a s12 bond, is provided by s99(2), which expressly entitles the revoking court to impose a sentence of imprisonment be served by way of a periodic detention order or a home detention order. It may be unfortunate that the Drug Court sentencing option has not been maintained as a further option to the revoking court because, as is pointed out in the written submissions furnished by Legal Aid, the powers of the Drug Court to deal with an offender whose sentence has been suspended under the Drug Court Act vastly exceeds the powers available in relation to an offender who has had a sentence suspended under s12. 14. In my view that there is no fundamental conflict between the Drug Court Act and the Crimes (Sentencing Procedure) Act in relation to s12 bonds. At the charge and plea stage, i.e. at the presentence stage, certain drug dependent offenders who face full time imprisonment, may elect to be referred to the Drug Court, which may then sentence them under the Drug Court Act. Section 7(4) of the Drug Court Act provides: (4) A person who is convicted and sentenced by the Drug Court under this section with respect to an offence for which the person has been referred to the Drug Court under section 6 may at the same time be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5(2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence. 15. Consequently, both in relation to referred offences, and in relation to offences called in under s7(4), the Drug Court is the Court responsible for the whole of the sentencing process. 16. It is not contemplated that the Drug Court exercise its special powers under the Drug Court Act in relation to a partial sentencing process, which is what occurs, when s 12 bonds are revoked. Of course, the Drug Court may deal with issues of revocation, pursuant to its s24(1) jurisdiction. It has the criminal jurisdiction of both the Local Court and the District Court, in addition to its special jurisdiction. However, the Court's special s7 jurisdiction is not available in relation to s12 revocation matters. ******** 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.